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CREDIT AGREEMENT
by and among
OMNOVA SOLUTIONS INC.
as Borrower,
BANK OF AMERICA, N.A.,
as Agent and as Lender
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
and
BANC OF AMERICA SECURITIES, LLC
as Sole Lead Arranger and Sole Book Manager
and
BANK ONE, MICHIGAN
and
KEYBANK NATIONAL ASSOCIATION
as Co-Documentation Agents
and
THE BANK OF NEW YORK,
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
MELLON BANK, N.A.
and
COMERICA BANK
as Co-Agents
September 30, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.1. Definitions..................................................................................................2
1.2. Rules of Interpretation.....................................................................................27
ARTICLE II
The Credit Facilities
2.1. Revolving Loans.............................................................................................29
2.2. Use of Proceeds.............................................................................................32
2.3. Notes.......................................................................................................32
2.4. Swing Line..................................................................................................32
ARTICLE III
Letters of Credit
3.1. Letters of Credit...........................................................................................34
3.2. Reimbursement and Participations............................................................................34
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1. Interest Rate Options.......................................................................................38
4.2. Conversions and Elections of Subsequent Interest Periods....................................................38
4.3. Payment of Interest.........................................................................................39
4.4. Prepayments of Eurodollar Rate Loans........................................................................39
4.5. Manner of Payment...........................................................................................39
4.6. Fees........................................................................................................40
4.7. Pro Rata Payments...........................................................................................41
4.8. Computation of Rates and Fees...............................................................................41
4.9. Deficiency Advances; Failure to Purchase Participations.....................................................41
4.10. Intraday Funding...........................................................................................42
ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return...........................................................................43
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5.2. Limitation on Types of Loans................................................................................44
5.3. Illegality..................................................................................................45
5.4. Treatment of Affected Loans.................................................................................45
5.5. Compensation................................................................................................45
5.6. Taxes.......................................................................................................46
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance...............................................................................48
6.2. Conditions of Revolving Loans and Letter of Credit..........................................................51
ARTICLE VII
Representations and Warranties
7.1. Organization and Authority..................................................................................53
7.2. Transaction Documents.......................................................................................53
7.3. Governmental Authorization..................................................................................54
7.4. Capitalization; Subsidiaries; Investments...................................................................54
7.5. Financial Condition.........................................................................................55
7.6. Title to Properties.........................................................................................55
7.7. Litigation; Loss Contingencies..............................................................................55
7.8. No Default or Breach........................................................................................56
7.9. Material Contracts..........................................................................................56
7.10. Related Party Agreements...................................................................................56
7.11. Environmental Matters......................................................................................56
7.12. Compliance with Law........................................................................................57
7.13. Taxes......................................................................................................57
7.14. Employee Benefit Plans.....................................................................................58
7.15. Employment Matters.........................................................................................59
7.16. Intellectual Property......................................................................................59
7.17. Insurance..................................................................................................59
7.18. Books and Records..........................................................................................59
7.19. Judgments and Other Restrictions...........................................................................60
Investment Company; Margin Stock........................................................................60
7.21. Disclosure.................................................................................................60
7.22. Hedging Arrangements.......................................................................................60
7.23. Solvency...................................................................................................61
7.24. No Consents, Etc...........................................................................................61
7.25. Year 2000 Compliance.......................................................................................61
7.26. Tax Treatment of Spinoff...................................................................................61
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ARTICLE VIII
Affirmative Covenants
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8.1. Financial Reports, Etc......................................................................................62
8.2. Maintain Properties.........................................................................................63
8.3. Existence, Qualification, Etc...............................................................................64
8.4. Regulations and Taxes.......................................................................................64
8.5. Insurance, Proceeds and Condemnation........................................................................64
8.6. True Books..................................................................................................64
8.7. Year 2000 Compliance........................................................................................64
8.8. Right of Inspection.........................................................................................65
8.9. Observe all Laws............................................................................................65
8.10. Governmental Licenses......................................................................................65
8.11. Covenants Extending to Other Persons.......................................................................65
8.12. Officer's Knowledge of Default.............................................................................65
8.13. Suits or Other Proceedings.................................................................................65
8.14. Environmental Laws.........................................................................................65
8.15. Further Assurances.........................................................................................66
8.16. Employee Benefit Plans.....................................................................................66
8.17. Continued Operations.......................................................................................67
8.18. New Subsidiaries...........................................................................................67
8.19. Compliance with Material Contracts.........................................................................68
ARTICLE IX
Negative Covenants
9.1. Financial Covenants.........................................................................................69
9.2. Acquisitions................................................................................................69
9.3. Capital Expenditures........................................................................................69
9.4. Liens.......................................................................................................69
9.5. Indebtedness................................................................................................71
9.6. Transfer of Assets..........................................................................................71
9.7. Investments.................................................................................................72
9.8. Merger or Consolidation.....................................................................................72
9.9. Transactions with Affiliates................................................................................73
9.10. Compliance with ERISA, the Code and Foreign Benefit Laws...................................................73
9.11. Fiscal Year................................................................................................74
9.12. Dissolution, etc...........................................................................................74
9.13. Limitations on Sales and Leasebacks........................................................................74
9.14. Rate Hedging Obligations...................................................................................74
9.15. Negative Pledge Clauses....................................................................................74
9.16. Restricted Payments........................................................................................75
9.17. Redemption, Prepayment, or Amendment of Senior Notes and Other Indebtedness................................75
9.18. Amendment of Line of Business Transfer Documents and Spinoff Documents.....................................75
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ARTICLE X
EVENTS OF DEFAULT AND ACCELERATION
10.1. Events of Default..........................................................................................76
10.2. Agent to Act...............................................................................................79
10.3. Cumulative Rights..........................................................................................79
10.4. No Waiver..................................................................................................80
10.5. Allocation of Proceeds.....................................................................................80
ARTICLE XI
THE AGENT
11.1. Appointment, Powers, and Immunities........................................................................81
11.2. Reliance by Agent..........................................................................................81
11.3. Defaults...................................................................................................82
11.4. Rights as Lender...........................................................................................82
11.5. Indemnification............................................................................................82
11.6. Non-Reliance on Agent and Other Lenders....................................................................83
11.7. Resignation of Agent.......................................................................................83
ARTICLE XII
Miscellaneous
12.1. Assignments and Participations.............................................................................84
12.2. Notices....................................................................................................86
12.3. Right of Set-off; Adjustments..............................................................................87
12.4. Survival...................................................................................................88
12.5. Expenses...................................................................................................88
12.6. Amendments and Waivers.....................................................................................88
12.7. Counterparts...............................................................................................89
12.8. Termination................................................................................................89
12.9. Indemnification; Limitation of Liability...................................................................90
12.10. Severability..............................................................................................90
12.11. Entire Agreement..........................................................................................91
12.12. Agreement Controls........................................................................................91
12.13. Usury Savings Clause......................................................................................91
12.14. Payments..................................................................................................91
12.15. Confidentiality...........................................................................................92
12.16. Governing Law; Waiver of Jury Trial.......................................................................92
12.17. Special Funding Option....................................................................................93
EXHIBIT A Applicable Commitment Percentages...................................................A-1
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EXHIBIT B Form of Assignment and Acceptance...................................................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative..................C-1
EXHIBIT D-1 Form of Borrowing Notice............................................................D-1-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans..........................................D-2-1
EXHIBIT E Form of Interest Rate Selection Notice..............................................E-1
EXHIBIT F-1 Form of Revolving Note..............................................................F-1-1
EXHIBIT F-2 Form of Swing Line Note.............................................................F-2-1
EXHIBIT G Form of Opinion of Borrower's Counsel...............................................G-1
EXHIBIT H Compliance Certificate..............................................................H-1
EXHIBIT I Form of Facility Guaranty...........................................................I-1
EXHIBIT J Form of LC Account Agreement........................................................J-1
Schedule 7.4 Capital Stock, Subsidiaries and Investments in Other Persons........................S-1
Schedule 7.5 Indebtedness........................................................................S-2
Schedule 7.6 Liens and Real Property.............................................................S-3
Schedule 7.7 Litigation..........................................................................S-4
Schedule 7.8 Defaults............................................................................S-5
Schedule 7.10 Related Party Agreements............................................................S-6
Schedule 7.11 Environmental Matters...............................................................S-7
Schedule 7.14 Employee Benefit Plans..............................................................S-8
Schedule 7.15 Employment Matters..................................................................S-9
Schedule 7.16 Intellectual Property...............................................................S-10
Schedule 7.17 Insurance...........................................................................S-11
Schedule 7.22 Hedging Arrangements................................................................S-12
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 30, 1999 (the
"Agreement"), is made by and among OMNOVA SOLUTIONS INC., an Ohio corporation
having its principal place of business in Fairlawn, Ohio (the "Borrower"), BANK
OF AMERICA, N.A., a national banking association organized and existing under
the laws of the United States, in its capacity as a Lender ("Bank of America"),
and each other financial institution executing and delivering a signature page
hereto and each other financial institution which may hereafter execute and
deliver an instrument of assignment with respect to this Agreement pursuant to
SECTION 12.1 (hereinafter such financial institutions may be referred to
individually as a "Lender" or collectively as the "Lenders"), and BANK OF
AMERICA, N.A., a national banking association organized and existing under the
laws of the United States, in its capacity as agent for the Lenders (in such
capacity, and together with any successor agent appointed in accordance with the
terms of SECTION 11.7, the "Agent");
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower a revolving credit facility in the maximum aggregate principal
amount at any time outstanding of up to $300,000,000, the proceeds of which are
to be used for working capital, capital expenditures, the making of the Special
Distribution (as defined below), permitted acquisitions and other lawful general
corporate purposes and which shall include a letter of credit facility of up to
$25,000,000 for the issuance of standby and commercial letters of credit and a
swing line facility of up to $10,000,000; and
WHEREAS, the Lenders are willing to make such revolving credit, letter
of credit and swing line facilities available to the Borrower upon the terms and
conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
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ARTICLE I
Definitions and Terms
1.1. DEFINITIONS. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or any material part of the assets of such Person or of a line or lines
of business conducted by such Person.
"Advance" means a borrowing under the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Affected Loans" and "Affected Type" have the meanings
therefor provided in SECTION 5.4.
"Affiliate" means any Person other than a wholly owned
Subsidiary or an Employee Benefit Plan (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower; or (ii) which beneficially owns
or holds 10% or more of any class of the outstanding voting stock
(calculated after giving effect pro forma to the conversion of all
issued and outstanding capital stock convertible into voting stock of
the Borrower) (or in the case of a Person which is not a corporation,
10% or more of the equity interest) of the Borrower; or (iii) 10% or
more of any class of the outstanding voting stock (or in the case of a
Person which is not a corporation, 10% or more of the equity interest)
of which is beneficially owned or held by the Borrower. The term
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a
Person, whether through ownership of voting stock, by contract or
otherwise.
"Applicable Commitment Percentage" means, for each Lender at
any time, a fraction, with respect to the Revolving Credit Facility and
the Letter of Credit Facility the numerator of which shall be such
Lender's Revolving Credit Commitment and the denominator of which shall
be the Total Revolving Credit Commitment, which Applicable Commitment
Percentage for each Lender as of the Closing Date is as set forth in
EXHIBIT A; PROVIDED that the Applicable Commitment Percentage of each
Lender shall be increased or decreased to reflect any assignments to or
by such Lender effected in accordance with SECTION 12.1.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for
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such Type of Loan on the signature pages hereof or such other office of
such Lender (or an affiliate of such Lender) as such Lender may from
time to time specify to the Agent and the Borrower by written notice in
accordance with the terms hereof as the office by which its Loans of
such Type are to be made and maintained.
"Applicable Margin" means:
(i) except as otherwise selected by the Borrower pursuant to
clause (ii) below and applicable in accordance with the terms of clause
(ii), that percent per annum set forth below, which shall be based upon
the Consolidated Leverage Ratio for the Four-Quarter Period most
recently ended as specified below:
Applicable
Level Consolidated Leverage Ratio Margin
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I Greater than 2.25 to 1.00 1.50%
II Less than or equal to 2.25 to 1.00
but greater than 1.50 to 1.00 1.25%
III Less than or equal to 1.50 to 1.00
but greater than 0.75 to 1.00 1.00%
IV Less than or equal to 0.75 to 1.00 0.75%
The Applicable Margin shall be established at the end of each fiscal
quarter of the Borrower (each, a "Determination Date"). Any change in
the Applicable Margin following each Determination Date shall be
determined based upon the computations set forth in the certificate
furnished to the Agent pursuant to SECTION 8.1(a)(ii) and SECTION
8.1(b)(ii), subject to review and approval of such computations by the
Agent, and shall be effective commencing on the fifth Business Day
following the date such certificate is received until the fifth
Business Day following the date on which a new certificate is delivered
or is required to be delivered, whichever shall first occur; PROVIDED
HOWEVER, if the Borrower shall fail to deliver any such certificate
within the time period required by SECTION 8.1, then the Applicable
Margin shall be Level I for Eurodollar Rate Loans from the date such
certificate was due until the appropriate certificate is so delivered.
Subject to the proviso in the preceding sentence, from the Closing Date
to and including the Determination Date as to which the Borrower has
delivered the certificate described above demonstrating the Borrower's
Consolidated Leverage Ratio for two Complete Fiscal Quarters occurring
after the Spinoff (the "Fixed Margin Period"), the Applicable Margin
for Eurodollar Rate Loans shall be no lower than Level III; or
(ii) if the Borrower selects at any time after the Fixed
Margin Period that the Applicable Margin shall be determined based on
the Borrower's Debt Rating (as defined below), then at such time and at
all times thereafter until the Revolving Credit
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Termination Date, that percent per annum set forth below in the
applicable column, which shall be (a) determined based upon the rating
of each rated class of the Borrower's long-term, senior unsecured
Indebtedness for Money Borrowed (the "Rated Debt"), assigned by S&P and
Xxxxx'x (the "Debt Rating") as specified below and (b) applicable to
all Eurodollar Loans existing on and after the first date a specific
Debt Rating is effective and continuing until, but not including, the
date any change in such Debt Rating is effective (the "Debt Rating
Date"):
Applicable
Level Debt Rating Margin
----- ----------- ------
I Less than or equal to BB by S&P and Ba2 by Xxxxx'x 1.50%
II BB+ by S&P and Ba1 by Xxxxx'x 1.25%
III BBB- by S&P and Baa3 by Xxxxx'x 1.00%
IV BBB by S&P and Baa2 by Xxxxx'x 0.875%
V Greater than or equal to BBB+ by S&P and Baa1 by
Xxxxx'x 0.75%
In the event that the Debt Ratings assigned by S&P and Xxxxx'x
differ by one rating level, the Applicable Margin shall be determined
by reference to the rating level having the higher Debt Rating (and
lower Applicable Margin) without regard to the lower Debt Rating. In
the event that the Debt Ratings assigned by S&P and Xxxxx'x differ by
more than one rating level, the Applicable Margin shall be determined
by reference to the Debt Rating which is one rating level higher than
the lower assigned Debt Rating without regard to the higher assigned
Debt Rating. The final Debt Rating level by which the Applicable Margin
is determined is referred to herein as a "Level". By way of
illustration and not limitation, if S&P assigned a rating of BB+ (i.e.,
Level II) and Xxxxx'x assigns a rating of Baa3 (i.e., Level III), the
Applicable Margin will be 1.00% (i.e. Level III); however if S&P
assigns a rating of BB (i.e., Level I) and Xxxxx'x assigns a rating of
Baa1 (i.e., Level V), the Applicable Margin will be 1.25% (i.e. Level
II). In the event that both S&P and Xxxxx'x do not make a Debt Rating,
the Applicable Margin shall be determined based on the Consolidated
Leverage Ratio pursuant to clause (i) above.
"Applicable Unused Fee" means:
(i) except as otherwise selected by the Borrower pursuant to
clause (ii) below and applicable in accordance with the terms of clause
(ii), that percent per annum set forth below, which shall be based upon
the Consolidated Leverage Ratio for the Four-Quarter Period most
recently ended as specified below:
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Applicable
Unused
Level Consolidated Leverage Ratio Fee
----- --------------------------- ----------
I Greater than 2.25 to 1.00 0.35%
II Less than or equal to 2.25 to 1.00
but greater than 1.50 to 1.00 0.30%
III Less than or equal to 1.50 to 1.00
but greater than 0.75 to 1.00 0.25%
IV Less than or equal to 0.75 to 1.00 0.20%
The Applicable Unused Fee shall be established at each Determination
Date. Any change in the Applicable Unused Fee following each
Determination Date shall be determined based upon the computations set
forth in the certificate furnished to the Agent pursuant to SECTION
8.1(a)(ii) and SECTION 8.1(b)(ii), subject to review and approval of
such computations by the Agent and shall be effective commencing on the
fifth Business Day following the date such certificate is received
until the fifth Business Day following the date on which a new
certificate is delivered or is required to be delivered, whichever
shall first occur; PROVIDED HOWEVER, if the Borrower shall fail to
deliver any such certificate within the time period required by SECTION
8.1, then the Applicable Unused Fee shall be Level I from the date such
certificate was due until the appropriate certificate is so delivered.
Subject to the proviso in the preceding sentence, during the Fixed
Margin Period the Applicable Unused Fee shall be no lower than Level
III; or
(ii) if the Borrower selects at any time after the Fixed
Margin Period that the Applicable Margin shall be determined based on
the Borrower's Debt Rating, then at such time and at all times
thereafter until the Revolving Credit Termination Date, that percent
per annum set forth below in the applicable column, which shall be (a)
determined based upon the Debt Rating as specified below and (b)
applicable on and after the first date a specific Debt Rating is
effective and continuing until, but not including, the date any change
in such Debt Rating is effective:
Applicable
Level Debt Rating Unused Fee
----- ----------- ----------
I Less than or equal to BB by S&P and Ba2 by Xxxxx'x 0.30%
II BB+ by S&P and Ba1 by Xxxxx'x 0.25%
III BBB- by S&P and Baa3 by Xxxxx'x 0.20%
IV BBB by S&P and Baa2 by Xxxxx'x 0.175%
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V Greater than or equal to BBB+ by S&P and Baa1 by
Xxxxx'x 0.15%
In the event that the Debt Ratings assigned by S&P and Xxxxx'x
differ by one rating level, the Applicable Unused Fee shall be
determined by reference to the rating level having the higher Debt
Rating (and lower Applicable Unused Fee) without regard to the lower
Debt Rating. In the event that the Debt Ratings assigned by S&P and
Xxxxx'x differ by more than one rating level, the Applicable Unused Fee
shall be determined by reference to the Debt Rating which is one rating
level higher than the lower assigned Debt Rating without regard to the
higher assigned Debt Rating. The final Debt Rating level by which the
Applicable Unused Fee is determined is referred to herein as a "Level".
By way of illustration and not limitation, if S&P assigned a rating of
BB+ (i.e., Level II) and Xxxxx'x assigns a rating of Baa3 (i.e., Level
III), the Applicable Unused Fee will be 0.20% (i.e. Level III); however
if S&P assigns a rating of BB (i.e., Level I) and Xxxxx'x assigns a
rating of Baa1 (i.e., Level V), the Applicable Unused Fee will be 0.25%
(i.e. Level II). In the event that both S&P and Xxxxx'x do not make a
Debt Rating, the Applicable Unused Fee shall be determined based on the
Consolidated Leverage Ratio pursuant to clause (i) above.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank to support the issuance of Letters of
Credit.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of EXHIBIT B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to SECTION 12.1.
"Authorized Representative" means the Chief Financial Officer
of the Borrower, or any other Person expressly designated by a
Responsible Officer or the Board of Directors of the Borrower (or the
appropriate committee thereof) as an Authorized Representative of the
Borrower, as set forth from time to time in a certificate in the form
of EXHIBIT C.
"Bank of America" means Bank of America, N.A.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the rate per annum equal to
the higher of (i) the Federal Funds Rate for such day plus one-half of
one percent (0.5%) and (ii) the Prime Rate for such day. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or Federal Funds Rate.
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"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made either to (i) satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit or (ii) pay Bank of America in
respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower's Account" means a demand deposit account number
3751372974 or any successor account with the Agent, which may be
maintained at one or more offices of the Agent or an agent of the
Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of EXHIBITS D-1 AND D-2,
respectively.
"Business Day" means, (i) except as expressly provided in
clause (ii), any day which is not a Saturday, Sunday or a day on which
banks in the States of New York and North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed
and, (ii) with respect to the selection, funding, interest rate,
payment, and Interest Period of any Eurodollar Rate Loan, any day which
is a Business Day, as described above, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York,
New York and Charlotte, North Carolina.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the SUM of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Agent together with any compliance certificate
delivered pursuant to SECTION 8.1(a) or (b), and (ii) with respect to
any Capital Lease entered into by the Borrower or its Subsidiaries
during such period, the present value of the lease payments due under
such Capital Lease over the term of such Capital Lease applying a
discount rate equal to the interest rate provided in such lease (or in
the absence of a stated interest rate, that rate used in the
preparation of the financial statements described in SECTION 8.1(a),
all the foregoing in accordance with GAAP applied on a Consistent
Basis.
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"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) either (A) becomes
the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act ), directly or indirectly, of Voting Securities
of the Borrower (or securities convertible into or
exchangeable for such Voting Securities) representing thirty
percent (30%) or more of the combined voting power of all
Voting Securities of the Borrower (on a fully diluted basis)
or (B) otherwise has the ability, directly or indirectly, to
elect a majority of the board of directors of the Borrower; or
(ii) during any period of up to 24 consecutive months,
commencing on the Closing Date, individuals who at the
beginning of such 24-month period were directors of the
Borrower shall cease for any reason to constitute a majority
of the board of directors of the Borrower, unless the
nomination for election by the Borrower's stockholders of each
new director of the Borrower was approved by a vote of at
least two-thirds of the directors of the Borrower still in
office who were directors of the Borrower at the beginning of
any such period.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in SECTION 6.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Complete Fiscal Quarter" means a full fiscal quarter of the
Borrower including the first and last days of such fiscal quarter.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Borrower referred to as of
the Closing Date in SECTION 7.6(a).
"Consolidated Cash Interest Expense" means, with respect to
any period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries paid in cash, including without
limitation (i) all fees paid during such period and (ii) the portion of
any payments made in connection with Capital Leases allocable to
interest expense, all determined on a consolidated basis in accordance
with GAAP applied on Consistent Basis.
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"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the SUM of, without duplication, (i) Consolidated
Net Income, (ii) Consolidated Interest Expense, (iii) taxes on income,
(iv) amortization, and (v) depreciation, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis.
"Consolidated Interest Coverage Ratio" means with respect to
the Borrower and its Subsidiaries, for any Four-Quarter Period ending
on the date of computation thereof, the ratio of (i) Consolidated
EBITDA for such period to (ii) Consolidated Cash Interest Expense for
such period.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Swap Agreement) payable in
connection with the incurrence of Indebtedness to the extent included
in gross interest expense and (iii) the portion of any payments made in
connection with Capital Leases allocable to interest expense, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Total Funded Debt
(determined as at such date) to (ii) Consolidated EBITDA (for the
Four-Quarter Period ending on (or most recently ended prior to) such
date).
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries (including payments received by the Borrower and its
Subsidiaries of (i) interest income, and (ii) dividends and
distributions made in the ordinary course of their businesses by
Persons in which investment is permitted pursuant to this Agreement and
not related to an extraordinary event), less all operating and
non-operating expenses of the Borrower and its Subsidiaries including
taxes on income, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis; but excluding as income: (i)
net gains on the sale, conversion or other disposition of capital
assets, (ii) net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower or
its Subsidiaries, (iii) net gains on the collection of proceeds of life
insurance policies, (iv) any write-up of any asset, and (v) any other
net gain or credit of an extraordinary nature as determined in
accordance with GAAP applied on a Consistent Basis; PROVIDED FURTHER,
HOWEVER, that Consolidated Net Income shall be determined without
giving effect to FASB 133 Adjustments as may be required by GAAP.
"Consolidated Total Assets" means, as of any date on which the
amount thereof is to be determined, the net book value of all assets of
the Borrower and its Subsidiaries as
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determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Total Funded Debt" means all Indebtedness for
Money Borrowed of the Borrower and its Subsidiaries, all determined on
a consolidated basis.
"Contingent Obligation" of any Person means all contingent
liabilities required to be included in the financial statements, or
disclosed in the footnotes thereto, of such Person in accordance with
GAAP applied on a Consistent Basis, including Statement No. 5 of the
Financial Accounting Standards Board, all Rate Hedging Obligations and
any obligation of such Person guaranteeing or in effect guaranteeing
any Indebtedness, dividend or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including the obligations of such Person however incurred:
(1) to purchase such Indebtedness or other obligation or any
property or assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for the
purchase or payment of such Indebtedness or other obligation,
or (ii) to maintain a minimum working capital, net worth or
other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any Lien on any property or assets of
such Person to secure the payment of such Indebtedness or
other obligation;
(4) to lease property or to purchase securities or other
property or services primarily for the purpose of assuring the
owner or holder of such Indebtedness or obligation of the
ability of the primary obligor to make payment of such
Indebtedness or other obligation; or
(5) otherwise to assure the owner of such Indebtedness or such
obligation of the primary obligor against loss in respect
thereof.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to SECTION 4.2 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to SECTION 4.2 of one Type of Loan into another
Type of Loan.
"Credit Parties" means, collectively, the Borrower and each
Guarantor.
"Debt Rating" and "Debt Rating Date" shall have the meanings
provided therefor in the definition of "Applicable Margin."
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"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Base Rate Loans,
Swing Line Loans, Reimbursement Obligations, fees, and other amounts
payable in respect of Obligations (other than Obligations arising under
or in connection with Swap Agreements) or (except as otherwise
expressly provided therein) the obligations of any other Credit Party
under any of the other Loan Documents, a rate of interest per annum
which shall be two percent (2%) above the Base Rate and (iii) in any
case, the maximum rate permitted by applicable law, if lower.
"Determination Date" has the meaning therefor provided in the
definition of "Applicable Margin."
"Distribution Agreement" means the Distribution Agreement
dated as of September 30, 1999 between GenCorp and the Borrower
providing for the Line of Business Transfer and other related matters.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Domestic Material Subsidiary" means any Domestic Subsidiary
which is also a Material Subsidiary.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of the United States of America, any state or
territory thereof or the District of Columbia.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with SECTION 12.1, the Borrower,
in each case, such approval not to be unreasonably withheld (provided
that the incurrence by the Borrower of additional costs pursuant to
SECTION 5.6 as a result of such assignment shall constitute a
reasonable basis for withholding such consent) or delayed by the
Borrower and such approval to be deemed given by the Borrower (in the
absence of notice to the contrary, effective upon receipt) within five
Business Days after notice of such proposed assignment has been
provided by the assigning Lender to the Borrower; PROVIDED, HOWEVER,
that neither the Borrower nor an affiliate of the Borrower shall
qualify as an Eligible Assignee.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
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(a) Government Securities;
(b) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and Xxxxx'x;
(c) interest bearing demand or time deposits issued
by any Lender or certificates of deposit maturing within one
year from the date of issuance thereof and issued by a bank or
trust company organized under the laws of the United States or
of any state thereof having capital surplus and undivided
profits aggregating at least $400,000,000 and being rated "A"
or better by S&P or "A" or better by Xxxxx'x;
(d) Repurchase Agreements;
(e) Municipal Obligations; or
(f) shares of mutual funds which invest in
obligations described in paragraphs (a) through (e) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P.
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of ERISA
which (A) is maintained for employees of the Borrower or any of its
ERISA Affiliates, or any Subsidiary or is assumed by the Borrower or
any of its ERISA Affiliates, or any Subsidiary in connection with any
Acquisition or (B) has at any time within the previous six (6) years
been maintained by the Borrower for the employees of the Borrower, any
current or former ERISA Affiliate, or any Subsidiary and (ii) any plan,
arrangement, understanding or scheme maintained by the Borrower or any
Subsidiary that provides retirement, deferred compensation, employee or
retiree medical or life insurance, severance benefits or any other
benefit covering any employee or former employee and which is
administered under any Foreign Benefit Law or regulated by any
Governmental Authority other than the United States of America.
"Employee Matters Agreement" means the Agreement on Employee
Matters dated as of September 30, 1999 between GenCorp and the Borrower
providing for the treatment of employee benefit matters and other
compensation arrangements for former and current employees of the
Borrower and its Subsidiaries.
"Environmental Laws" means, collectively, any (i) Federal,
state, local or foreign statute, law, ordinance, code, rule or
regulation, or (ii) order or decree issued to or against the Borrower
or any Subsidiary, in either case regulating, relating to, or imposing
liability
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or standards of conduct concerning, any environmental matters or
conditions, environmental protection or conservation, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended; the Superfund Amendments and
Reauthorization Act of 1986, as amended; the Resource Conservation and
Recovery Act, as amended; the Toxic Substances Control Act, as amended;
the Clean Air Act, as amended; the Clean Water Act, as amended;
together with all regulations promulgated thereunder, and any other
"Superfund" or "Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
------------------------
Rate 1- Reserve Requirement Margin
"Event of Default" means any of the occurrences set forth as
such in SECTION 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Existing GenCorp Credit Agreement" means, collectively, (i)
that certain Credit Agreement dated as of May 17, 1996 among GenCorp,
NationsBank, N.A. (predecessor in interest to Bank of America)
("NationsBank") as agent and lender, and the other lenders party
thereto, as amended.
"Facility Guaranty" means each Guaranty Agreement
substantially in the form of EXHIBIT I between one or more Guarantors
and the Agent for the benefit of the Agent and the Lenders, delivered
as of the Closing Date and otherwise pursuant to SECTION 8.18, as the
same may be amended, modified or supplemented.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility and the Swing Line by payment
in full of all Revolving Credit Outstandings and Letter of Credit
Outstandings and Swing Line Outstandings, together with all accrued and
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unpaid interest thereon, except for the undrawn portion of Letters of
Credit as have been fully cash collateralized in a manner consistent
with the terms of SECTION 10.1(B), (b) all Swap Agreements shall have
been terminated, expired or cash collateralized, (c) all Revolving
Credit Commitments and Letter of Credit Commitments shall have
terminated or expired and (d) the Borrower shall have fully, finally
and irrevocably paid and satisfied in full all Obligations (other than
Obligations consisting of continuing indemnities and other Contingent
Obligations of the Borrower or any Guarantor that may be owing to the
Lenders pursuant to the Loan Documents and expressly survive
termination of this Agreement);
"FASB 133 Adjustments" means entries on or adjustments to any
balance sheet or statement of income in respect of derivatives or
hedging instruments as required or permitted by Statement of Financial
Accounting Standards No. 133.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; PROVIDED
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fiscal Year" means the twelve month fiscal period of the
Borrower and its Subsidiaries commencing on December 1 of each calendar
year and ending on November 30 of the subsequent calendar year.
"Fixed Margin Period" shall have the meaning therefor provided
in the definition of "Applicable Margin."
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower and its Subsidiaries, taken together as
one accounting period; PROVIDED, HOWEVER, (i) for each of the first
three fiscal quarters ending after the Closing Date, the Four-Quarter
Period ending on such date shall include so many of the most recent
fiscal quarterly periods of the Borrower reflected in the Historical
Unaudited Quarterly Statements as shall be necessary to result in a
period of four full consecutive fiscal quarters, (ii) to the extent the
first fiscal quarter ending after the Closing Date is included in any
Four-Quarter Period for the purposes of determining financial or
accounting
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matters hereunder, all calculations with respect to such fiscal quarter
shall be made on a pro forma basis giving effect to the Line of
Business Transfer and the Spinoff as of the first day of such fiscal
quarter, and (iii) the assets, liabilities and results of operations
reflected in such Historical Unaudited Quarterly Statements shall be
deemed to be the assets, liabilities and results of operations of the
Borrower and its Subsidiaries for the purpose of making any
determination or computation as to financial or accounting matters
hereunder that includes any period of operations covered by the
Historical Unaudited Quarterly Statements.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public
Accountants, or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report.
"GenCorp" means GenCorp Inc.
"GenCorp Prepayable Debt" means Indebtedness for Money
Borrowed of GenCorp in the aggregate principal amount of approximately
$188,000,000 and in no event to exceed $225,000,000 outstanding as of
the Closing Date under the Existing GenCorp Credit Agreement.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guaranties" means all obligations of the Borrower or any
Subsidiary directly or indirectly guaranteeing, or in effect
guaranteeing, any Indebtedness for Money Borrowed of any other Person.
"Guarantors" means, at any date, the Domestic Subsidiaries in
existence at the Closing Date together with each additional Domestic
Material Subsidiary required to execute and deliver a Facility Guaranty
by such date pursuant to SECTION 8.18.
"Hazardous Material" means and includes any hazardous, toxic
or dangerous waste, substance or material the generation, handling,
storage, disposal, treatment, release, discharge or emission of which
is subject to any Environmental Law.
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"Historical Unaudited Quarterly Statements" means the
historical unaudited consolidated balance sheets and stockholders'
equity as at and for each of the fiscal quarters ended February 28,
1999, May 31, 1999 and August 31, 1999, statements of income as at and
or the fiscal quarter ended May 31, 1999 and cash flows as at and for
each of the fiscal quarters ended February 28, 1999 and May 31, 1999,
prepared by GenCorp and previously furnished to the Agent reflecting
the assets, liabilities and results of operations of the Transferred
Business.
"Indebtedness" means as to any Person, without duplication,
(a) all Indebtedness for Money Borrowed of such Person, (b) all Rate
Hedging Obligations of such Person, (c) all indebtedness secured by any
Lien on any property or asset owned or held by such Person regardless
or whether the indebtedness secured thereby shall have been assumed by
such Person or is non-recourse to the credit of such Person, and (d)
all Contingent Obligations of such Person.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation, all obligations under Capital
Leases, the deferred purchase price of any property or services, the
principal balance outstanding under any synthetic lease or tax
retention operating lease, and payment and reimbursement obligations in
respect of surety bonds, letters of credit, and bankers' acceptances,
whether or not matured, evidenced by a promissory note, bond, debenture
or similar written obligation for the payment of money (including
reimbursement agreements and conditional sales or similar title
retention agreements), other than trade payables and accrued expenses
incurred in the ordinary course of business.
"Intellectual Property" has the meaning therefor provided in
SECTION 7.16.
"Interbank Offered Rate" means, with respect to any
Eurodollar Rate Loan for the Interest Period applicable thereto, the
rate per annum (rounded upwards, if necessary), to the nearest 1/100 of
1% appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period. If
for any reason such rate is not available, the term "Interbank Offered
Rate" shall mean, with respect to any Eurodollar Rate Loan for the
Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period, PROVIDED, HOWEVER; if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending, at the
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Borrower's option, on the date one, two, three or six months thereafter
as notified to the Agent by the Authorized Representative in accordance
with the terms hereof; PROVIDED that,
(i) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Business Day, such Interest
Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day); and
(ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of EXHIBIT E.
"IRS Ruling Letter" has the meaning provided therefor in
SECTION 6.1(a)(xix).
"Issuing Bank" means initially Bank of America and thereafter
any Lender which is successor to Bank of America as issuer of Letters
of Credit under ARTICLE III.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Agent, as amended,
modified or supplemented from time to time.
"Lending Party" means, collectively, the Agent and each
Lender.
"Letter of Credit" means a standby or commercial letter of
credit issued by the Issuing Bank pursuant to ARTICLE III hereof for
the account of the Borrower in favor of a Person advancing credit or
securing an obligation on behalf of the Borrower.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
ARTICLE III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters
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of Credit in an aggregate stated amount at any time outstanding not
exceeding the Total Letter of Credit Commitment minus outstanding
Reimbursement Obligations.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Line of Business Transfer" means the transfer of the
Transferred Business to Borrower by GenCorp on the Closing Date
immediately prior to the closing of the Revolving Credit Facility.
"Line of Business Transfer Documents" means all documentation
(including all schedules and exhibits thereto) relating to the Line of
Business Transfer, including without limitation the Distribution
Agreement.
"Loans" means, collectively, the Swing Line Loan and the
Revolving Loans.
"Loan Documents" means this Agreement, the Notes, the Facility
Guaranties, the LC Account Agreement, the Applications and Agreements
for Letter of Credit, and all other instruments and documents
heretofore or hereafter executed or delivered to or in favor of any
Lender or the Agent in connection with the Loans made and transactions
contemplated under this Agreement, as the same may be amended,
supplemented or replaced from time to time.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations, or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole, (ii)
the ability of any Credit Party to pay or perform its respective
obligations, liabilities and indebtedness under the Loan Documents as
such payment or performance becomes due in accordance with the terms
thereof, or (iii) the rights, powers and remedies of the Agent or any
Lender under any Loan Document or the validity, legality or
enforceability thereof.
"Material Contracts" means, collectively, any contract, lease,
agreement or commitment of the Borrower or any Subsidiary the
expiration or termination of which could be reasonably likely to result
in a Material Adverse Effect.
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"Material Subsidiary" means, as of any date of determination,
any direct or indirect Subsidiary of the Borrower which has assets
equal to at least 10% of Consolidated Total Assets (calculated as of
the most recent fiscal period with respect to which the Agent shall
have received financial statements required to be delivered pursuant to
SECTIONS 8.1(a) or (b) hereof (or if such determination shall be made
prior to delivery of such financial statements, then calculated with
respect to the Fiscal Year end financial statements referenced in
SECTION 7.6(a) hereof)); provided, however, that notwithstanding the
foregoing, if the Borrower and the Domestic Subsidiaries, as defined
above, have less than 90% of domestic Consolidated Total Assets or have
net income of less than 90% of domestic Consolidated Net Income, then
the term "Material Subsidiaries" shall mean Domestic Subsidiaries of
the Borrower, as specified by the Borrower, that together with the
Borrower have assets equal to not less than 90% of domestic
Consolidated Total Assets and net income of not less than 90% of
domestic Consolidated Net Income.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"Notes" means, collectively, the Swing Line Note and the
Revolving Notes.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all liabilities of Borrower to any Lender (or any affiliate of any
Lender) which arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and Indebtedness of
the Borrower to the Lenders, the Agent or BAS hereunder, under any one
or more of the other Loan Documents or with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
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"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings and Revolving Credit
Outstandings on such date.
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other than Bank of America) and a Swing Line
Loan, the extension of credit represented by the participation of such
Lender hereunder in the liability of Bank of America in respect of a
Swing Line Loan made by Bank of America in accordance with the terms
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time within the previous six (6) years been maintained by the
Borrower for the employees of the Borrower or any current or former
ERISA Affiliate.
"Permitted Asset Securitization" means any securitization of
accounts receivable of the Borrower or its Subsidiaries having an
aggregate contract value not exceeding $75,000,000 when added to all
other securitization transactions consummated during the term of this
Agreement and upon such terms as are acceptable to and approved in
writing by the Required Lenders.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
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"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
"Principal Office" means the principal office of Bank of
America, presently located at 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, XX0
000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Agency Services,
or such other office and address as the Agent may from time to time
designate.
"Proxy Statement" means the definitive proxy statement first
mailed by GenCorp to its shareholders on or about July 7, 1999
describing the Spinoff and soliciting such shareholder vote to proceed
therewith.
"Rate Hedging Obligations" means, without duplication, any and
all obligations of the Borrower or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; (ii) all other
"derivative instruments" as defined in FASB 133 and which are subject
to the reporting requirements of FASB 133; and (iii) any and all
cancellations, buybacks, reversals, terminations or assignments of any
of the foregoing.
"Rated Debt" has the meaning therefor provided in the
definition of "Applicable Margin."
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to SECTION 2.1(c)(iii)) for amounts
theretofore paid by the Issuing Bank pursuant to a drawing under such
Letter of Credit.
"Related LC Documents" has the meaning therefor provided in
SECTION 3.2(i)(i).
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's.
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"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating greater than 50%
of the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "CREDIT EXPOSURE"
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, to its
Revolving Credit Commitment, and (b) following the occurrence and
during the continuance of an Event of Default, to the sum of (i) the
aggregate principal amount of such Lender's Applicable Commitment
Percentage of Revolving Credit Outstandings plus (ii) the amount of
such Lender's Applicable Commitment Percentage of Letter of Credit
Outstandings and Swing Line Outstandings; PROVIDED that, for the
purpose of this definition only, (A) if any Lender shall have failed to
fund its Applicable Commitment Percentage of any Advance, then the
Revolving Credit Commitment of such Lender shall be deemed reduced by
the amount it so failed to fund for so long as such failure shall
continue and such Lender's Credit Exposure attributable to such failure
shall be deemed held by any Lender making more than its Applicable
Commitment Percentage of such Advance to the extent it covers such
failure, (B) if any Lender shall have failed to pay to the Issuing Bank
upon demand its Applicable Commitment Percentage of any drawing under
any Letter of Credit resulting in an outstanding Reimbursement
Obligation (whether by funding its Participation therein or otherwise),
such Lender's Credit Exposure attributable to all Letter of Credit
Outstandings shall be deemed to be held by the Issuing Bank until such
Lender shall pay such deficiency amount to the Issuing Bank together
with interest thereon as provided in SECTION 4.9 and (C) if any Lender
shall have failed to pay to Bank of America on demand its Applicable
Commitment Percentage of any Swing Line Loan (whether by funding its
Participation therein or otherwise), such Lender's Credit Exposure
attributable to all Swing Line Outstandings shall be deemed to be held
by Bank of America until such Lender shall pay such deficiency amount
to Bank of America together with interest thereon as provided in
SECTION 4.9.
"Requirements of Law" means, with respect to a Person, the
charter and bylaws or other organizational or governing documents of
such Person, and any law, treaty, rule, regulation, right, privilege,
qualification, license or franchise or final and nonappealable
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or to
which any of its property is subject or pertaining to any or all of the
transactions contemplated or referred to herein.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other
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assets which include Eurodollar Rate Loans. The Eurodollar Rate shall
be adjusted automatically on and as of the effective date of any change
in the Reserve Requirement.
"Responsible Officer" means the Chief Executive Officer, the
Chief Financial Officer, any Senior Vice President, the Secretary or
the Treasurer of the Borrower.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Borrower or any of its Subsidiaries (other than those
payable or distributable solely to the Borrower) now or hereafter
outstanding, except a dividend payable solely in shares of a class of
stock to the holders of that class; (b) any redemption, conversion,
exchange, retirement or similar payment, purchase or other acquisition
for value, direct or indirect, of any shares of any class of stock of
Borrower or any of its Subsidiaries (other than those payable or
distributable solely to the Borrower) now or hereafter outstanding; (c)
any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of stock of Borrower or any of its Subsidiaries now or hereafter
outstanding.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
SECTION 2.1 hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to SECTION 10.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit, together with all accrued and unpaid interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with SECTION 2.1.
"Revolving Notes" means, collectively, the promissory notes of
the Borrower evidencing Revolving Loans executed and delivered to the
Lenders as provided in SECTION 2.3 substantially in the form of EXHIBIT
F-1, with appropriate insertions as to amounts, dates and names of
Lenders.
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"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx.
"Senior Notes" means the senior notes of the Borrower to be
issued in the aggregate principal amount not to exceed $150,000,000.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Special Distribution" means the cash dividend of
approximately $188,000,000 and in no event to exceed $225,000,000 paid
on the Closing Date, immediately following the Line of Business
Transfer and the effectiveness of this Agreement and immediately
preceding the Spinoff, by the Borrower to GenCorp, the proceeds of
which are to be used by GenCorp to repay the GenCorp Prepayable Debt
substantially simultaneously with the receipt thereof by GenCorp.
"Spinoff" means the special dividend of all outstanding shares
of capital stock of the Borrower to the holders of the outstanding
shares of GenCorp Common Stock on a pro rata basis and on the basis of
one share of common stock of the Borrower for each share of common
stock of GenCorp, all as described in the Proxy Statement.
"Spinoff Documents" means (i) the Proxy Statement, (ii) the
Registration Statement of the Borrower on Form 10, including all
amendments thereto, initially filed on July 9, 1999 with the Securities
and Exchange Commission and (iii) all other documentation (including
all schedules and exhibits thereto) relating to the Spinoff, including
without limitation the Tax Matters Agreement, the Employee Matters
Agreement and the Transition Services Agreement.
"Stated Termination Date" means September 30, 2004.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding Voting Securities or more than 50% of
all equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries.
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"Swap Agreement" means one or more agreements between the
Borrower and any Lender or any affiliate of any Lender with respect to
Indebtedness evidenced by any or all of the Notes, on terms mutually
acceptable to Borrower and such Person, which agreements create Rate
Hedging Obligations.
"Swing Line" means the revolving line of credit established by
Bank of America in favor of the Borrower pursuant to SECTION 2.4.
"Swing Line Loans" means loans made by Bank of America to the
Borrower pursuant to SECTION 2.4.
"Swing Line Note" means the promissory note of the Borrower
evidencing the Swing Line executed and delivered to Bank of America as
provided in SECTION 2.3 substantially in the form of EXHIBIT F-2.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Tax Matters Agreement" means the Tax Sharing Agreement dated
as of September 30, 1999 between GenCorp and the Borrower providing for
matters regarding Federal, state, local and foreign tax liabilities for
periods prior to and including the effective date of the Spinoff.
"Taxes" has the meaning therefor provided in SECTION 5.6(a).
"Termination Event" means, other than the reorganization of
any Employee Benefit Plan in connection with the Spinoff or Line of
Business Transfer, (i) a "Reportable Event" described in Section 4043
of ERISA and the regulations issued thereunder (unless the notice
requirement has been waived by applicable regulation); or (ii) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan
during a plan year in which it was a "substantial employer" as defined
in Section 4001(a)(2) of ERISA or was deemed such under Section 4062(e)
of ERISA; or (iii) the termination of a Pension Plan, the filing of a
notice of intent to terminate a Pension Plan or the treatment of a
Pension Plan amendment as a termination under Section 4041 of ERISA; or
(iv) the institution of proceedings to terminate a Pension Plan by the
PBGC; or (v) any other event or condition which would constitute
grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; or (vi) the
partial or complete withdrawal of the Borrower or any ERISA Affiliate
from a Multiemployer Plan; or (vii) the imposition of a Lien pursuant
to Section 412 of the Code or Section 302 of ERISA; or (viii) any event
or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Section 4241 or Section 4245 of ERISA,
respectively; or (ix) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by the PBGC of proceedings to terminate a Multiemployer
Plan under Section 4042 of ERISA; or (x) any event or condition with
respect to any Employee Benefit Plan which is
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regulated by any Foreign Benefit Law that results in the termination of
such Employee Benefit Plan or the revocation of such Employee Benefit
Plan's authority to operate under the applicable Foreign Benefit Law.
"Total Letter of Credit Commitment" means an amount not to
exceed $25,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to $300,000,000, as reduced from time to time in accordance with
SECTION 2.1(e).
"Transaction Documents" means, collectively, or individually
as the context may dictate, the Loan Documents, the Spinoff Documents
and the Line of Business Transfer Documents.
"Transferred Business" means the assets, liabilities and
operations of the Performance Chemicals and Decorative & Building
Products businesses of GenCorp immediately prior to the Line of
Business Transfer and includes the GenCorp Technology Center, corporate
flight operations of GenCorp, the GenCorp corporate headquarters
building in Fairlawn, Ohio and the tangible and intangible assets owned
and leased for such businesses.
"Transition Services Agreement" means the Services and Support
Agreement dated as of September 30, 1999 between GenCorp and the
Borrower providing for certain transitional administrative services and
for reimbursement of all direct and indirect costs of providing such
services.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"Year 2000 Compliant" means all computer applications and
other systems and operations of the Borrower and all of its
Subsidiaries that are material to the Borrower's or any of its
Subsidiaries' business and operations will on a timely basis be able to
perform properly date-sensitive functions involving all dates on and
after January 1, 2000;
"Year 2000 Problem" means the risk that computer applications
or other systems or operations used by the Borrower or any of its
Subsidiaries, suppliers, vendors or customers may be unable to
recognize and perform properly date-sensitive functions involving
certain dates on and after January 1, 2000.
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1.2. RULES OF INTERPRETATION.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Articles 1, 8 or 9 of the New York
Uniform Commercial Code shall have the meaning given therein unless
otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is controlling, in which case
such terms shall have the meaning given in the Uniform Commercial Code
of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any
Loan Document to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules are references to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules in or to such Loan Document.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
(h) Except as otherwise expressly provided, all dates and
times of day specified herein shall refer to such dates and times at
Charlotte, North Carolina.
(i) Whenever interest rates or fees are established in whole
or in part by reference to a numerical percentage expressed as "___%",
such arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
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(j) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(k) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
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ARTICLE II
The Credit Facilities
---------------------
2.1. REVOLVING LOANS.
(a) COMMITMENT. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the
Borrower under the Revolving Credit Facility from time to time from the
Closing Date until the Revolving Credit Termination Date on a pro rata
basis as to the total borrowing requested by the Borrower on any day
determined by such Lender's Applicable Commitment Percentage up to but
not exceeding the Revolving Credit Commitment of such Lender, PROVIDED,
however, that the Lenders will not be required and shall have no
obligation to make any such Advance (i) so long as a Default or an
Event of Default has occurred and is continuing or (ii) if the Agent
has accelerated the maturity of any of the Notes as a result of an
Event of Default; PROVIDED further, however, that immediately after
giving effect to each such Advance, the amount of Revolving Credit
Outstandings plus Letter of Credit Outstandings plus Swing Line
Outstandings shall not exceed the Total Revolving Credit Commitment.
Within such limits and subject to the other terms and conditions of
this Agreement, the Borrower may borrow, repay and reborrow under the
Revolving Credit Facility on a Business Day from the Closing Date
until, but (as to borrowings and reborrowings) not including, the
Revolving Credit Termination Date.
(b) AMOUNTS. Except as otherwise permitted by the Lenders from
time to time, the amount of Revolving Credit Outstandings plus Letter
of Credit Outstandings plus Swing Line Outstandings shall not exceed at
any time the Total Revolving Credit Commitment, and, in the event there
shall be outstanding any such excess, the Borrower shall immediately
make such payments and prepayments as shall be necessary to comply with
this restriction. Each Advance under the Revolving Credit Facility,
other than Base Rate Refunding Loans, shall be in an amount of at least
$5,000,000, and, if greater than $5,000,000, an integral multiple of
$1,000,000.
(c) ADVANCES.
(i) An Authorized Representative shall give the Agent
(1) at least three (3) Business Days' irrevocable telephonic
notice of each Eurodollar Rate Loan (whether representing an
additional borrowing or the Continuation of a borrowing
hereunder or the Conversion of a borrowing hereunder from a
Base Rate Loan to a Eurodollar Rate Loan) prior to 11:00 A.M.
and (2) irrevocable telephonic notice of each Base Rate Loan
(other than Base Rate Refunding Loans to the extent the same
are effected without notice pursuant to SECTION 2.1(c)(iii)
and whether representing an additional borrowing hereunder or
the Conversion of borrowing hereunder from Eurodollar Rate
Loans to Base Rate Loans) prior to 11:00 A.M. on the day of
such proposed Revolving Loan. Each such notice shall be
effective upon receipt by the Agent, shall specify the amount
of the borrowing,
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the type of Revolving Loan (Base Rate or Eurodollar Rate), the
date of borrowing and, if a Eurodollar Rate Loan, the Interest
Period to be used in the computation of interest. The
Authorized Representative shall provide the Agent written
confirmation of each such telephonic notice in the form of a
Borrowing Notice or Interest Rate Selection Notice (as
applicable) with appropriate insertions but failure to provide
such confirmation shall not affect the validity of such
telephonic notice. Notice of receipt of such Borrowing Notice
or Interest Rate Selection Notice, as the case may be,
together with the amount of each Lender's portion of an
Advance requested thereunder, shall be provided by the Agent
to each Lender by telefacsimile transmission with reasonable
promptness, but (provided the Agent shall have received such
notice by 10:30 A.M.) not later than 1:00 P.M. on the same day
as the Agent's receipt of such notice.
(ii) Not later than 2:00 P.M. on the date specified
for each borrowing under this SECTION 2.1, each Lender shall,
pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Advance or Advances to be
made by it on such day available by wire transfer to the Agent
in the amount of its pro rata share, determined according to
such Lender's Applicable Commitment Percentage of the
Revolving Loan or Revolving Loans to be made on such day. Such
wire transfer shall be directed to the Agent at the Principal
Office and shall be in the form of Dollars constituting
immediately available funds. The amount so received by the
Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by delivery of
the proceeds thereof to the Borrower's Account or otherwise as
shall be directed in the applicable Borrowing Notice by the
Authorized Representative and reasonably acceptable to the
Agent.
(iii) Notwithstanding the foregoing, if a drawing is
made under any Letter of Credit, such drawing is honored by
the Issuing Bank, and the Borrower shall not immediately fully
reimburse the Issuing Bank in respect of such drawing from
other funds available to the Borrower, (A) provided that the
conditions to making a Revolving Loan as herein provided shall
then be satisfied, the Reimbursement Obligation arising from
such drawing shall be paid to the Issuing Bank by the Agent
without the requirement of notice to or from the Borrower from
immediately available funds which shall be advanced as a Base
Rate Refunding Loan to the Agent at its Principal Office by
each Lender under the Revolving Credit Facility in an amount
equal to such Lender's Applicable Commitment Percentage of
such Reimbursement Obligation, and (B) if the conditions to
making a Revolving Loan as herein provided shall not then be
satisfied, each of the Lenders shall fund by payment to the
Agent (for the benefit of the Issuing Bank) at its Principal
Office in immediately available funds the purchase from the
Issuing Bank of their respective Participations in the related
Reimbursement Obligation based on their respective Applicable
Commitment Percentages of the Total Letter of Credit
Commitment. If a drawing is presented under any Letter of
Credit in accordance with the terms thereof and the Borrower
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shall not immediately reimburse the Issuing Bank in respect
thereof, then notice of such drawing or payment shall be
provided promptly by the Issuing Bank to the Agent and the
Agent shall provide notice to each Lender by telephone or
telefacsimile transmission. If notice to the Lenders of a
drawing under any Letter of Credit is given by the Agent at or
before 12:00 noon on any Business Day, each Lender shall
either make a Base Rate Refunding Loan or fund the purchase of
its Participation as specified above in the amount of such
Lender's Applicable Commitment Percentage of such drawing or
payment and shall pay such amount to the Agent for the account
of the Issuing Bank at the Principal Office in Dollars and in
immediately available funds before 2:30 P.M. on the same
Business Day. If such notice to the Lenders is given by the
Agent after 12:00 noon on any Business Day, each Lender shall
either make such Base Rate Refunding Loan or fund such
purchase before 12:00 noon on the next following Business Day.
(d) REPAYMENT OF REVOLVING LOANS. The principal amount of each
Revolving Loan shall be due and payable to the Agent for the benefit of
each Lender in full on the Revolving Credit Termination Date, or
earlier as specifically provided herein. The principal amount of any
Revolving Loan may be prepaid in whole or in part on any Business Day,
upon (A) at least three (3) Business Days' irrevocable telephonic
notice, in the case of each Revolving Loan that is a Eurodollar Rate
Loan, from an Authorized Representative (effective upon receipt) to the
Agent prior to 10:30 A.M. and (B) irrevocable telephonic notice, in the
case of each Revolving Loan that is a Base Rate Loan, from an
Authorized Representative (effective upon receipt) to the Agent prior
to 10:30 A.M. on the day of such proposed repayment. The Authorized
Representative shall provide the Agent written confirmation of each
such telephonic notice but failure to provide such confirmation shall
not effect the validity of such telephonic notice. All prepayments of
Revolving Loans made by the Borrower shall be in the amount of
$10,000,000 or such greater amount which is an integral multiple of
$5,000,000, or the amount equal to all Revolving Credit Outstandings,
or such other amount as necessary to comply with SECTION 2.1(b).
(e) REDUCTIONS. The Borrower shall, by notice from an
Authorized Representative, have the right from time to time but not
more frequently than once each calendar month, upon not less than three
(3) Business Days' written notice to the Agent, effective upon receipt,
to reduce the Total Revolving Credit Commitment. The Agent shall give
each Lender, within one (1) Business Day of receipt of such notice,
telefacsimile notice, or telephonic notice (confirmed in writing), of
such reduction. Each such reduction shall be in the aggregate amount of
$10,000,000 or such greater amount which is in an integral multiple of
$5,000,000, or the entire remaining Total Revolving Credit Commitment,
and shall permanently reduce the Total Revolving Credit Commitment.
Each reduction of the Total Revolving Credit Commitment shall be
accompanied by payment of the Revolving Loans to the extent that the
principal amount of Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings exceeds the Total Revolving
Credit Commitment after giving effect to such reduction, together with
accrued and unpaid interest on the amounts prepaid.
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2.2. USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower for general
working capital needs and other corporate purposes, including the payment of the
Special Distribution and the making of Acquisitions and Capital Expenditures
permitted hereunder.
2.3. NOTES.
(a) REVOLVING NOTES. Revolving Loans made by each Lender shall
be evidenced by the Revolving Note payable to the order of such Lender
in the respective amount of its Applicable Commitment Percentage of the
Total Revolving Credit Commitment, which Revolving Note shall be dated
the Closing Date or a later date pursuant to an Assignment and
Acceptance and shall be duly completed, executed and delivered by the
Borrower.
(b) SWING LINE NOTE. The Swing Line Outstandings shall be
evidenced by a separate Swing Line Note payable to the order of the
Bank of America in the amount of the Swing Line, which Note shall be
dated the Closing Date and shall be duly completed, executed and
delivered by the Borrower.
2.4. SWING LINE.
(a) Notwithstanding any other provision of this Agreement to
the contrary, in order to administer the Revolving Credit Facility in
an efficient manner and to minimize the transfer of funds between the
Agent and the Lenders, Bank of America shall make available Swing Line
Loans to the Borrower prior to the Revolving Credit Termination Date.
Bank of America shall not be obligated to make any Swing Line Loan
pursuant hereto (i) if to the actual knowledge of Bank of America the
Borrower is not in compliance with all the conditions to the making of
Revolving Loans set forth in this Agreement, (ii) if after giving
effect to such Swing Line Loan, the Swing Line Outstandings exceed
$10,000,000, or (iii) if after giving effect to such Swing Line Loan,
the sum of the Swing Line Outstandings, Revolving Credit Outstandings
and Letter of Credit Outstandings exceeds the Total Revolving Credit
Commitment. The Borrower may, subject to the conditions set forth in
the preceding sentence, borrow, repay and reborrow under this SECTION
2.4. Unless notified to the contrary by Bank of America, borrowings
under the Swing Line shall be made in the minimum amount of $1,000,000
or, if greater, in amounts which are integral multiples of $100,000, or
in the amount necessary to effect a Base Rate Refunding Loan, upon
written request by telefacsimile transmission, effective upon receipt,
by an Authorized Representative of the Borrower made to Bank of America
not later than 12:30 P.M. on the Business Day of the requested
borrowing. Each such Borrowing Notice shall specify the amount of the
borrowing and the date of borrowing, and shall be in the form of
EXHIBIT D-2, with appropriate insertions. Unless notified to the
contrary by Bank of America, each repayment of a Swing Line Loan shall
be in an amount which is an integral multiple of $100,000 or the
aggregate amount of all Swing Line Outstandings.
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(b) The interest payable on Swing Line Loans is solely for the
account of Bank of America. Swing Line Loans shall bear interest solely
at the Base Rate or, if applicable, the Default Rate. All accrued and
unpaid interest on Swing Line Loans shall be payable, on the dates and
in the manner provided in SECTION 4.3 with respect to interest on Base
Rate Loans.
(c) Upon the making of a Swing Line Loan, each Lender shall be
deemed to have purchased from Bank of America a Participation therein
in an amount equal to that Lender's Applicable Commitment Percentage of
such Swing Line Loan. Upon demand made by Bank of America, each Lender
shall, according to its Applicable Commitment Percentage of such Swing
Line Loan, promptly provide to Bank of America its purchase price
therefor in an amount equal to its Participation therein. Any Advance
made by a Lender pursuant to demand of Bank of America of the purchase
price of its Participation shall when made be deemed to be (i) provided
that the conditions to making Revolving Loans shall be satisfied, a
Base Rate Refunding Loan under SECTION 2.1, and (ii) in all other
cases, the funding by each Lender of the purchase price of its
Participation in such Swing Line Loan. The obligation of each Lender to
so provide its purchase price to Bank of America shall be absolute and
unconditional and shall not be affected by the occurrence of an Event
of Default or any other occurrence or event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to SECTION 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to Bank of America the amount necessary to repay such
Swing Line Outstandings (which Bank of America shall then apply to such
repayment) and credit any balance of the Advance in immediately available funds
in the manner directed by the Borrower pursuant to SECTION 2.1(c)(ii). The
proceeds of such Advances shall be paid to Bank of America for application to
the Swing Line Outstandings and the Lenders shall then be deemed to have made
Loans in the amount of such Advances. The Swing Line shall continue in effect
until the Revolving Credit Termination Date, at which time all Swing Line
Outstandings and accrued interest thereon shall be due and payable in full.
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ARTICLE III
Letters of Credit
-----------------
3.1. LETTERS OF CREDIT. The Issuing Bank agrees, subject to the terms
and conditions of this Agreement, upon request of the Borrower to issue from
time to time for the account of the Borrower Letters of Credit upon delivery to
the Issuing Bank of an Application and Agreement for Letter of Credit relating
thereto in form and content acceptable to the Issuing Bank; PROVIDED, that (i)
the Issuing Bank shall not be obligated to issue any Letter of Credit if it has
been notified by the Agent or has actual knowledge that a Default or Event of
Default has occurred and is continuing, (ii) the Letter of Credit Outstandings
shall not exceed the Total Letter of Credit Commitment and (iii) no Letter of
Credit shall be issued if, after giving effect thereto, Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing Line Outstandings
shall exceed the Total Revolving Credit Commitment. No Letter of Credit shall
have an expiry date (including all rights of the Borrower or any beneficiary
named in such Letter of Credit to require renewal) or payment date occurring
later than the seventh Business Day prior to the Stated Termination Date.
3.2. REIMBURSEMENT AND PARTICIPATIONS.
(a) The Borrower hereby unconditionally agrees to pay to the
Issuing Bank immediately on demand at the Principal Office all amounts
required to pay all drafts drawn or purporting to be drawn under the
Letters of Credit and all reasonable expenses incurred by the Issuing
Bank in connection with the Letters of Credit, and in any event and
without demand to place in possession of the Issuing Bank (which shall
include Advances under the Revolving Credit Facility if permitted by
SECTION 2.1 and Swing Line Loans if permitted by SECTION 2.4)
sufficient funds to pay all debts and liabilities arising under any
Letter of Credit. The Issuing Bank agrees to give the Borrower prompt
notice of any request for a draw under a Letter of Credit. The Issuing
Bank may charge any account the Borrower may have with it for any and
all amounts the Issuing Bank pays under a Letter of Credit, plus
charges and reasonable expenses as from time to time agreed to by the
Issuing Bank and the Borrower; provided that to the extent permitted by
SECTION 2.1(c)(iii) and SECTION 2.4, amounts shall be paid pursuant to
Advances under the Revolving Credit Facility or, if the Borrower shall
elect, by Swing Line Loans. The Borrower agrees to pay the Issuing Bank
interest on any Reimbursement Obligations not paid when due hereunder
at the Default Rate.
(b) In accordance with the provisions of SECTION 2.1(c), the
Issuing Bank shall notify the Agent of any drawing under any Letter of
Credit promptly following the receipt by the Issuing Bank of such
drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation
in the liability of the Issuing Bank in respect of each Letter of
Credit in an amount equal to such Lender's Applicable Commitment
Percentage of such liability, and to the extent that the Borrower is
obligated to pay the
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Issuing Bank under SECTION 3.2(a), each Lender (other than the Issuing
Bank) thereby shall absolutely, unconditionally and irrevocably assume,
and shall be unconditionally obligated to pay to the Issuing Bank, its
Applicable Commitment Percentage of the liability of the Issuing Bank
under such Letter of Credit in the manner and with the effect provided
in SECTION 2.1(c)(iii).
(d) Simultaneously with the making of each payment by a Lender
to the Issuing Bank pursuant to SECTION 2.1(c)(iii)(B), such Lender
shall, automatically and without any further action on the part of the
Issuing Bank or such Lender, acquire a Participation in an amount equal
to such payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the related
Reimbursement Obligation of the Borrower. Each Lender's obligation to
make payment to the Agent for the account of the Issuing Bank pursuant
to SECTION 2.1(c)(iii) and SECTION 3.2(c), and the right of the Issuing
Bank to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever and shall be made
without any offset, abatement, withholding or reduction whatsoever. In
the event the Lenders have purchased Participations in any
Reimbursement Obligation as set forth above, then at any time payment
(in fully collected, immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by the Issuing Bank from
the Borrower, the Issuing Bank shall promptly pay to each Lender an
amount equal to its Applicable Commitment Percentage of such payment
from the Borrower.
(e) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver to the Agent a notice describing the
aggregate undrawn amount of all Letters of Credit at the end of such
quarter. Upon the request of any Lender from time to time, the Issuing
Bank shall deliver to the Agent, and the Agent shall deliver to such
Lender, any other information reasonably requested by such Lender with
respect to each Letter of Credit outstanding.
(f) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in ARTICLE VI,
be subject to the conditions that such Letter of Credit be in such form
and contain such terms as shall be reasonably satisfactory to the
Issuing Bank consistent with the then current practices and procedures
of the Issuing Bank with respect to similar letters of credit, and the
Borrower shall have executed and delivered such other instruments and
agreements relating to such Letters of Credit as the Issuing Bank shall
have reasonably requested consistent with such practices and
procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits,
1993 revision, International Chamber of Commerce Publication No. 500
or, if the Issuing Bank shall elect by express reference in an affected
Letter of Credit, the International Chamber of Commerce International
Standby Practices commonly referred to as "ISP98", or any subsequent
amendment or revision of either thereof.
(g) The Borrower agrees that the Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of
Credit, any drafts or other
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documents otherwise in order which may be signed or issued by an
administrator, executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver, attorney
in fact or other legal representative of a party who is authorized
under such Letter of Credit to draw or issue any drafts or other
documents.
(h) Without limiting the generality of the provisions of
SECTION 12.9, the Borrower hereby agrees to indemnify and hold harmless
the Issuing Bank, each other Lender and the Agent from and against any
and all claims and damages, losses, liabilities, reasonable costs and
expenses which the Issuing Bank, such other Lender or the Agent may
incur (or which may be claimed against the Issuing Bank, such other
Lender or the Agent) by any Person by reason of or in connection with
the issuance or transfer of or payment or failure to pay under any
Letter of Credit; provided that the Borrower shall not be required to
indemnify the Issuing Bank, any other Lender or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, (i) caused by the willful misconduct or gross
negligence of the party to be indemnified or (ii) caused by the failure
of the Issuing Bank to pay under any Letter of Credit after the
presentation to it of a request for payment strictly complying with the
terms and conditions of such Letter of Credit, unless such payment is
prohibited by any law, regulation, court order or decree. The
indemnification and hold harmless provisions of this SECTION 3.2(h)
shall survive repayment of the Obligations, occurrence of the Revolving
Credit Termination Date, the Facility Termination Date and expiration
or termination of this Agreement.
(i) Without limiting Borrower's rights as set forth in SECTION
3.2(h), the obligation of the Borrower to immediately reimburse the
Issuing Bank for drawings made under Letters of Credit and the Issuing
Bank's right to receive such payment shall be absolute, unconditional
and irrevocable, and such obligations of the Borrower shall be
performed strictly in accordance with the terms of this Agreement and
such Letters of Credit and the related Application and Agreement for
any Letter of Credit, under all circumstances whatsoever, including the
following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Agent, the Lenders or any other Person, whether in connection
with the Loan Documents, the Related LC Documents or any
unrelated transaction;
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(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent,
the Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) any delay, extension of time, renewal, compromise
or other indulgence or modification granted or agreed to by
the Agent, with or without notice to or approval by the
Borrower in respect of any of Borrower's Obligations under
this Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing;
provided, however, that nothing contained herein shall be deemed to
release the Issuing Bank or any other Lender of any liability for
actual loss arising as a result of its gross negligence or willful
misconduct; and provided further, however, that to the extent any
conflict exists between this Agreement and any Application and
Agreement for Letters of Credit or other document or agreement required
by the Issuing Bank in connection with the issuance of Letters of
Credit, the terms of this Agreement shall control.
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ARTICLE IV
EURODOLLAR FUNDING, FEES, AND PAYMENT CONVENTIONS
4.1. INTEREST RATE OPTIONS. Eurodollar Rate Loans and Base Rate Loans
may be outstanding at the same time and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower shall have the
option to elect the Type of Loan and the duration of the initial and any
subsequent Interest Periods and to Convert Revolving Loans in accordance with
SECTIONS 2.1(c)(i) AND 4.2, as applicable; PROVIDED, HOWEVER, (a) there shall
not be outstanding at any one time Eurodollar Rate Loans having more than eight
(8) different Interest Periods, (b) each Eurodollar Rate Loan (including each
Conversion into and each Continuation as a Eurodollar Rate Loan) shall be in an
amount of $5,000,000 or, if greater than $5,000,000 an integral multiple of
$1,000,000 and (c) no Eurodollar Rate Loan shall have an Interest Period that
extends beyond the Stated Termination Date. If the Agent does not receive a
Borrowing Notice or an Interest Rate Selection Notice giving notice of election
of the duration of an Interest Period or of Conversion of any Loan to or
Continuation of a Loan as a Eurodollar Rate Loan by the time prescribed by
SECTIONS 2.1(c)(i) AND 4.2, as applicable, the Borrower shall be deemed to have
elected to obtain or Convert such Loan to (or Continue such Loan as) a Base Rate
Loan until the Borrower notifies the Agent in accordance with SECTION 4.2. The
Borrower shall not be entitled to elect to Continue any Loan as or Convert any
Loan into a Eurodollar Rate Loan if a Default or Event of Default shall have
occurred and be continuing.
4.2. CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Subject
to the limitations set forth in the definition of "Interest Period" and in
SECTION 4.1 and ARTICLE V, the Borrower may:
(a) upon delivery of telephonic notice to the Agent (which
shall be irrevocable) on or before 10:30 A.M. on any Business Day,
Convert any Eurodollar Rate Loan to a Base Rate Loan on the last day of
the Interest Period for such Eurodollar Rate Loan; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing, upon delivery of telephonic notice to the
Agent (which shall be irrevocable) on or before 10:30 A.M. three (3)
Business Days' prior to the date of such Conversion or Continuation:
(i) elect a subsequent Interest Period for any
Eurodollar Rate Loan to begin on the last day of the then
current Interest Period for such Eurodollar Rate Loan; or
(ii) Convert any Base Rate Loan to a Eurodollar Rate
Loan on any Business Day.
Each such notice shall be effective upon receipt by the Agent, shall
specify the amount of the Eurodollar Rate Loan affected, and, if a
Continuation as or Conversion into a
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Eurodollar Rate Loan, the Interest Period to be used in the computation
of interest. The Authorized Representative shall provide the Agent
written confirmation of each such telephonic notice in the form of a
Borrowing Notice or Interest Rate Selection Notice (as applicable) with
appropriate insertions but failure to provide such confirmation shall
not affect the validity of such telephonic notice. Notice of receipt of
such Borrowing Notice or Interest Rate Selection Notice, as the case
may be, shall be provided by the Agent to each Lender by telefacsimile
transmission with reasonable promptness, but (provided the Agent shall
have received such notice by 10:30 A.M.) not later than 3:00 P.M. on
the same day as the Agent's receipt of such notice. All such
Continuations or Conversions of Loans shall be effected pro rata based
on the Applicable Commitment Percentages of the Lenders.
4.3. PAYMENT OF INTEREST. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Revolving Loan, commencing on
the first date of such Revolving Loan until such Revolving Loan shall be repaid,
at the applicable Base Rate or Eurodollar Rate as designated by the Borrower in
the related Borrowing Notice or Interest Rate Selection Notice or as otherwise
provided hereunder. Interest on each Revolving Loan shall be paid on the earlier
of (a) in the case of any Base Rate Loan, quarterly in arrears of the last
Business Day of each November, February, May and August, commencing on November
30, 1999, until the Revolving Credit Termination Date, at which date the entire
principal amount of and all accrued interest on the Revolving Loans shall be
paid in full, (b) in the case of any Eurodollar Rate Loan, on last day of the
applicable Interest Period for such Eurodollar Rate Loan and if such Interest
Period extends for more than three (3) months, at intervals of three (3) months
after the first day of such Interest Period, and (c) upon payment in full of the
related Revolving Loan; PROVIDED, HOWEVER, that if any Event of Default shall
occur and be continuing, all amounts outstanding hereunder shall bear interest
thereafter until paid in full at the Default Rate.
4.4. PREPAYMENTS OF EURODOLLAR RATE LOANS. Whenever any payment of
principal shall be made in respect of any Loan hereunder, whether at maturity,
on acceleration, by optional or mandatory prepayment or as otherwise required or
permitted hereunder, with the effect that any Eurodollar Rate Loan shall be
prepaid in whole or in part prior to the last day of the Interest Period
applicable to such Eurodollar Rate Loan, such payment of principal shall be
accompanied by the additional payment, if any, required by SECTION 5.5.
4.5. MANNER OF PAYMENT.
(a) Each payment of principal (including any prepayment) and
payment of interest and fees, and any other amount required to be paid
by or on behalf of the Borrower to the Lenders, the Issuing Bank, the
Agent, or Bank of America with respect to any Loan, Letter of Credit,
Reimbursement Obligation, or Swing Line Loan, shall be made to the
Agent at the Principal Office in Dollars in immediately available funds
without condition or deduction or for any setoff, recoupment, deduction
or counterclaim on or before 12:30 P.M. on the date such payment is
due. The Agent may, but shall not
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be obligated to, debit the amount of such payment from any one or more
ordinary deposit accounts of the Borrower with the Agent.
(b) Any payment made by or on behalf of the Borrower that is
not made both in Dollars in immediately available funds and prior to
12:30 P.M. on the date such payment is to be made shall constitute a
non-conforming payment. Any such non-conforming payment shall not be
deemed to be received until the later of (i) the time such funds become
available funds and (ii) the next Business Day. Any non-conforming
payment may constitute or become a Default or Event of Default as
otherwise provided herein. Interest shall continue to accrue at the
Default Rate on any principal or fees as to which no payment or a
non-conforming payment is made from the date such amount was due and
payable until the later of (i) the date such funds become available
funds or (ii) the next Business Day.
(c) In the event that any payment hereunder or under any of
the Notes becomes due and payable on a day other than a Business Day,
then such due date shall be extended to the next succeeding Business
Day unless provided otherwise under the definition of "Interest
Period"; PROVIDED, however, that interest shall continue to accrue
during the period of any such extension; and PROVIDED further, however,
that in no event shall any such due date be extended beyond the
Revolving Credit Termination Date.
4.6. FEES.
(a) UNUSED FEE. For the period beginning on the Closing Date
and ending on the Revolving Credit Termination Date, the Borrower
agrees to pay to the Agent, for the pro rata benefit of the Lenders
based on their Applicable Commitment Percentages, a commitment fee
equal to the Applicable Unused Fee multiplied by the average daily
amount by which the Total Revolving Credit Commitment exceeds the sum
of (i) Revolving Credit Outstandings without giving effect to Swing
Line Outstandings plus (ii) Letter of Credit Outstandings. Such fees
shall be due in arrears on the last Business Day of each November,
February, May and August, commencing November 30, 1999 to and on the
Revolving Credit Termination Date. Notwithstanding the foregoing, so
long as any Lender fails to make available any portion of its Revolving
Credit Commitment when required to do so in accordance with the terms
hereof, such Lender shall not be entitled to receive payment of its pro
rata share of such fee until such Lender shall make available such
portion.
(b) LETTER OF CREDIT FACILITY FEES. The Borrower shall pay to
the Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, a fee on the aggregate amount
available to be drawn on each outstanding Letter of Credit at a rate
equal to the Applicable Margin for Eurodollar Rate Loans. Such fees
shall be due with respect to each Letter of Credit quarterly in arrears
on the last day of each December, March, June and September, the first
such payment to be made on the first such date occurring after the date
of issuance of a Letter of Credit.
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(c) LETTER OF CREDIT FRONTING AND ADMINISTRATIVE FEES. From
and after the date on which there is more than one Lender, the Borrower
shall pay to the Issuing Bank a fronting fee of one-eighth of one
percent per annum (.125%) on the aggregate amount available to be
drawn on each outstanding Letter of Credit, such fee to be payable
quarterly in arrears with respect to each Letter of Credit on the dates
established in SECTION 4.6(b) for the payment of Letter of Credit
facility fees with respect to such Letter of Credit. The Borrower shall
also pay to the Issuing Bank such administrative fee and other fees, if
any, in connection with the Letters of Credit in such amounts and at
such times as the Issuing Bank and the Borrower shall agree from time
to time.
(d) AGENCY ADMINISTRATIVE FEES. The Borrower agrees to pay to
the Agent, for the Agent's individual account, an annual administrative
fee, such fee to be payable in such amounts and on such dates as from
time to time agreed to by the Borrower and Agent in writing.
4.7. PRO RATA PAYMENTS. Except as otherwise specified herein, (a) each
payment on account of the principal of and interest on Loans, the fees described
in SECTION 4.6(a) AND (b), and Swing Line Loans and Reimbursement Obligations as
to which the Lenders have funded their respective Participations which remain
outstanding, shall be made to the Agent for the account of the Lenders pro rata
based on their Applicable Commitment Percentages, and (b) the Agent will
promptly distribute to the Lenders in immediately available funds payments
received in fully collected, immediately available funds from the Borrower.
4.8. COMPUTATION OF RATES AND FEES. Except as may be otherwise
expressly provided, (i) the Base Rate shall be computed on the basis of the
365/366 day year and calculated for actual days elapsed, and (ii) all other
interest rates (including each Eurodollar Rate, and the Default Rate) and fees
shall be computed on the basis of a year of 360 days and calculated for actual
days elapsed.
4.9. DEFICIENCY ADVANCES; FAILURE TO PURCHASE PARTICIPATIONS. No Lender
shall be responsible for any default of any other Lender in respect to such
other Lender's obligation to make any Loan or Advance hereunder or to fund its
purchase of any Participation hereunder nor shall the Revolving Credit
Commitment or Letter of Credit Commitment of any Lender hereunder be increased
as a result of such default of any other Lender. Without limiting the generality
of the foregoing or the provisions of SECTION 4.10, in the event any Lender
shall fail to advance funds to the Borrower as herein provided, the Agent may in
its discretion, but shall not be obligated to, advance under the applicable Note
in its favor as a Lender all or any portion of such amount or amounts (each, a
"deficiency advance") and shall thereafter be entitled to payments of principal
of and interest on such deficiency advance in the same manner and at the same
interest rate or rates to which such other Lender would have been entitled had
it made such Advance under its Note; provided that, (i) such defaulting Lender
shall not be entitled to receive payments of principal, interest or fees with
respect to such deficiency advance until such deficiency advance (together with
interest thereon as provided in clause (ii)) shall be paid by such Lender and
(ii) upon payment to the Agent from such other Lender of the entire outstanding
amount of each such deficiency advance, together with accrued and unpaid
interest thereon, from
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the most recent date or dates interest was paid to the Agent by a Borrower on
each Loan comprising the deficiency advance at the Federal Funds Rate, then such
payment shall be credited against the applicable Note of the Agent in full
payment of such deficiency advance and such Borrower shall be deemed to have
borrowed the amount of such deficiency advance from such other Lender as of the
most recent date or dates, as the case may be, upon which any payments of
interest were made by such Borrower thereon. In the event any Lender shall fail
to fund its purchase of a Participation after notice from the Issuing Bank or
Bank of America as the Swing Line lender, as applicable, such Lender shall pay
to the Issuing Bank or Bank of America as the Swing Line lender, as applicable,
such amount on demand, together with interest on the amount so due from the date
of such notice at the Federal Funds Rate to the date such purchase price is
received by the Issuing Bank or Bank of America as the Swing Line lender, as
applicable.
4.10. INTRADAY FUNDING. Without limiting the provisions of SECTION 4.9,
unless the Borrower or any Lender has notified the Agent not later than 12:00
Noon of the Business Day before the date any payment (including in the case of
Lenders any Advance) to be made by it is due, that it does not intend to remit
such payment, the Agent may, in its discretion, assume that Borrower or each
Lender, as the case may be, has timely remitted such payment in the manner
required hereunder and may, in its discretion and in reliance thereon, make
available such payment (or portion thereof) to the Person entitled thereto as
otherwise provided herein. If such payment was not in fact remitted to the Agent
in the manner required hereunder, then:
(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Agent the amount of such assumed
payment made available to such Lender, together with interest thereon
in respect of each day from and including the date such amount was made
available by the Agent to such Lender to the date such amount is repaid
to the Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the Agent
shall be entitled to recover such corresponding amount forthwith upon
the Agent's demand therefor, the Agent promptly shall notify the
Borrower, and the Borrower shall promptly pay such corresponding amount
to the Agent in immediately available funds upon receipt of such
demand. The Agent also shall be entitled to recover interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to
the date such corresponding amount is recovered by the Agent, (A) from
such Lender at a rate per annum equal to the daily Federal Funds Rate
or (B) from the Borrower, at a rate per annum equal to the interest
rate applicable to the Loan which includes such corresponding amount.
Until the Agent shall recover such corresponding amount together with
interest thereon, such corresponding amount shall constitute a
deficiency advance within the meaning of SECTION 4.9. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill
its commitments hereunder or to prejudice any rights which the Agent or
the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
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ARTICLE V
Change in Circumstances
-----------------------
5.1. INCREASED COST AND REDUCED RETURN.
(a) If, after the date hereof, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law, rule, or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any
such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect
to any Eurodollar Rate Loans, its Note, or its obligation to
make Eurodollar Rate Loans, or change the basis of taxation of
any amounts payable to such Lender (or its Applicable Lending
Office) under this Agreement or its Note in respect of any
Eurodollar Rate Loans (other than taxes imposed on the overall
net income of such Lender by the jurisdiction in which such
Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the Revolving Credit
Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other
condition affecting this Agreement or its Note or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, Converting into,
Continuing, or maintaining any Loans or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or its Note with respect to any Eurodollar Rate Loans, then
the Borrower shall pay to such Lender on demand such amount or amounts
as will compensate such Lender for such increased cost or reduction. If
any Lender requests compensation by the Borrower under this SECTION
5.1(a), the Borrower may, by notice to such Lender (with a copy to the
Agent), suspend the obligation of such Lender to make or Continue Loans
of the Type with respect to which such compensation is requested, or to
Convert Loans of any other Type into Loans of such Type, until the
event or condition giving rise to such request ceases to be in effect
(in which case the provisions of SECTION
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5.4 shall be applicable); PROVIDED that such suspension shall not
affect the right of such Lender to receive the compensation so
requested.
(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable law, rule, or regulation
regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of
such Lender or any corporation controlling such Lender as a consequence
of such Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies
with respect to capital adequacy), then from time to time upon demand
the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the
Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this
SECTION 5.1 and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this
SECTION 5.1 shall furnish to the Borrower and the Agent a statement
setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error.
In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
5.2. LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
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affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
5.3. ILLEGALITY. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, then such
Lender shall promptly notify the Borrower thereof and such Lender's obligation
to make or Continue Eurodollar Rate Loans and to Convert other Types of Loans
into Eurodollar Rate Loans shall be suspended until such time as such Lender may
again make, maintain, and fund Eurodollar Rate Loans (in which case the
provisions of SECTION 5.4 shall be applicable).
5.4. TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant TO SECTION 5.1
OR 5.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by SECTION 5.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
SECTION 5.1 OR 5.3 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in SECTION 5.1 OR 5.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this SECTION 5.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Revolving
Credit Commitments.
5.5. COMPENSATION. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender)
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to compensate it for any loss, cost, or expense (including loss of anticipated
profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to SECTION 10.1) on a date other
than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
ARTICLE VI to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Rate Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this
Agreement.
5.6. TAXES.
(a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, EXCLUDING,
in the case of each Lender and the Agent, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under the laws
of which such Lender (or its Applicable Lending Office) or the Agent
(as the case may be) is organized or any political subdivision thereof
(all such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under this Agreement or any other
Loan Document to any Lender or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
SECTION 5.6) such Lender or the Agent receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law, and (iv) the Borrower
shall furnish to the Agent, at its address referred to in SECTION 12.2,
the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Agreement or any other Loan Document or from
the execution or delivery of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this SECTION 5.6)
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paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom or with
respect thereto.
(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes
a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower or the Agent (but
only so long as such Lender remains lawfully able to do so), shall
provide the Borrower and the Agent with (i) Internal Revenue Service
Form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is entitled
to benefits under an income tax treaty to which the United States is a
party which reduces the rate of withholding tax on payments of interest
or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the
United States, (ii) Internal Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from or a reduced rate of tax on payments
pursuant to this Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Agent with the appropriate form
pursuant to SECTION 5.6(d) (unless such failure is due to a change in
treaty, law, or regulation occurring subsequent to the date on which a
form originally was required to be provided), such Lender shall not be
entitled to indemnification under SECTION 5.6(a) OR 5.6(b) with respect
to Taxes imposed by the United States; PROVIDED, HOWEVER, that should a
Lender, which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps
as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Lender pursuant to this SECTION 5.6, then
such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Agent the original or a
certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this SECTION 5.6 shall survive the termination of
the Revolving Credit Commitments, the payment in full of the Notes and
the Facility Termination Date.
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ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
--------------------------------------------------------
6.1. CONDITIONS OF INITIAL ADVANCE. The obligation of the Lenders to
make the initial Advance under the Revolving Credit Facility, and of the Issuing
Bank to issue any Letter of Credit, and of Bank of America to make any Swing
Line Loan, is subject to the conditions precedent that:
(a) the Agent shall have received on the Closing Date, in form
and substance satisfactory to the Agent and Lenders, the following:
(i) executed originals of each of this Agreement, the
Notes, the initial Facility Guaranties, the LC Account
Agreement and the other Loan Documents, together with all
schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of General Counsel to the Credit Parties
dated the Closing Date, addressed to the Agent and the Lenders
and satisfactory to Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P.,
special counsel to the Agent, substantially in the form of
EXHIBIT G;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date, (x) approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof, (y) declaring
and authorizing the Special Distribution and (z) approving and
adopting the Line of Business Transfer Documents and the
Spinoff Documents, and authorizing the execution and delivery
thereof;
(iv) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of each of the Credit Parties, certified by the
secretary or assistant secretary of such Credit Party;
(v) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization;
(vi) Operating Documents of each of the Credit
Parties certified as of the Closing Date as true and correct
by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Credit Parties as to the due
existence and good standing of such Person;
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(viii) appropriate certificates of qualification to do
business, good standing and, where appropriate, authority to
conduct business under assumed name, issued in respect of the
Borrower as of a recent date by the Secretary of State or
comparable official of each of Pennsylvania, Ohio,
Mississippi, Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxx and Massachussetts, and in respect of each of the
Guarantors as of a recent date by the Secretary of State or
comparable official of Ohio, in each case constituting all of
the jurisdictions in which the failure to be qualified to do
business or authorized so to conduct business could have a
Material Adverse Effect;
(ix) notice of appointment of the initial Authorized
Representative(s);
(x) certificate of an Authorized Representative dated
the Closing Date demonstrating compliance with the financial
covenants contained in SECTIONS 9.1(a) and 9.1(b) as of the
end of the fiscal quarter of GenCorp and its subsidiaries most
recently ended prior to the Closing Date and based on the
historical pro forma financial statements furnished to the
Agent reflecting the Transferred Business as at and for the
four fiscal quarter period ended on such date, substantially
in the form of EXHIBIT H;
(xi) the Historical Unaudited Quarterly Statements
and all other financial statements and projections referred to
in SECTION 7.6(a);
(xii) evidence that all notices required to be given to
effect on the Closing Date the repayment of the GenCorp
Prepayable Debt and termination of the Existing GenCorp Credit
Agreement substantially simultaneously with payment of the
Special Distribution shall have been given;
(xiii) a certificate of an officer of the Borrower
reasonably satisfactory to the Agent and the Lenders as to the
matters set forth in SECTIONS 6.1(b)(i)(x) and 6.1(b)(ii) and
6.1(b)(iii) and, with respect to the operations, assets and
affairs of the Borrower and its Subsidiaries only, SECTIONS
6.1(c)(i) through 6.1(c)(iii);
(xiv) a certificate of an officer of GenCorp reasonably
satisfactory to the Agent and the Lenders as to the matters
set forth in SECTIONS 6.1(b)(i)(y), 6.1(b)(i)(z) and
6.1(b)(ii) and, with respect to the operations, assets and
affairs of GenCorp and its subsidiaries only, SECTIONS
6.1(c)(i) through 6.1(c)(iii);
(xv) evidence of all insurance required by the Loan
Documents;
(xvi) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
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(xvii) copies of the executed Line of Business
Transfer Documents and Spinoff Documents certified by the
secretary or an assistant secretary of the Borrower, which
shall be satisfactory in form and substance to the Agent;
(xviii) copies certified by an Authorized
Representative of executed employment contracts by the
Borrower with key executives of the Transferred Business,
including Messrs. Xxxxxxxx, XxXxxxxx and Mass;
(xix) a copy, certified by a Responsible Officer of
the Borrower, of the ruling letter dated June 30, 1999 from
the Internal Revenue Service ("IRS") to the effect that
Section 335 of the Code would apply to the Spinoff such that
the Spinoff will constitute a tax-free distribution by GenCorp
for U.S. Federal income tax purposes (the "IRS Ruling
Letter");
(xx) such other documents, instruments, certificates
and opinions as the Agent or any Lender may reasonably request
on or prior to the Closing Date in connection with the
consummation of the transactions contemplated hereby; and
(xxi) evidence that all fees payable by the Borrower
on the Closing Date to the Agent, BAS and the Lenders have
been paid in full;
(b) Each of the following shall have occurred or be true:
(i) substantially simultaneously with the making of
the initial Advance hereunder (x) the Borrower shall make the
Special Distribution, (y) GenCorp shall prepay in full the
GenCorp Prepayable Debt and terminate and cancel the Existing
GenCorp Credit Agreement, and (z) the Spinoff and the Line of
Business Transfer shall be effected in accordance with, and
upon satisfaction of, each of the conditions to effectiveness
thereof without any waiver thereof as set forth in the Spinoff
Documents and the Line of Business Transfer Documents,
respectively;
(ii) there is no material asset or interest of
GenCorp scheduled or described in the Distribution Agreement
to be contributed to the Borrower in the Line of Business
Transfer which has not been assigned or transferred by GenCorp
to the Borrower as permitted pursuant to the Distribution
Agreement; and
(iii) there shall not have been any material
amendment, revision, alteration or supplement to any of the
Spinoff Documents or any of the Line of Business Transfer
Documents from the forms thereof from time to time delivered
to and reviewed by the Lenders without the written consent of
the Agent.
(c) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to
the Agent or the Lenders any event, condition, situation or
status since the date of the information
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contained in the financial and business projections, budgets,
pro forma data and forecasts concerning the Borrower and its
Subsidiaries delivered to the Agent prior to the Closing Date
that has had or could reasonably be expected to result in a
Material Adverse Effect or adversely affect the consummation
of the Spinoff or the Line of Business Transfer in accordance
with the terms of the Spinoff Documents or the Line of
Business Transfer Documents, respectively;
(ii) no order, decree, judgment, ruling, injunction,
litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or
threatened, and there shall exist no order, decree, judgment,
injunction or arbitral award or ruling, which could reasonably
be likely to result in a Material Adverse Effect, or restrain
or otherwise adversely affect the consummation of the Spinoff
or the Line of Business Transfer in accordance with the terms
of the Spinoff Documents or the Line of Business Transfer
Documents, respectively;
(iii) in connection with the Line of Business
Transfer, the Spinoff and the transactions contemplated
thereby, (A) each of GenCorp (or its applicable subsidiary)
and the Credit Parties shall have received all approvals,
consents and waivers, and shall have made or given all
necessary filings and notices as shall be required to
consummate the transactions contemplated hereby (including the
Spinoff and the Line of Business Transfer) without the
occurrence of any default under, conflict with or violation of
(I) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (II) any
agreement, document or instrument to which GenCorp, any of its
subsidiaries, or any of the Credit Parties is a party or by
which any of them or their properties is bound; and (B) such
approvals, consents and waivers shall be in force and effect,
(C) all waiting periods shall have expired without any action
being taken to restrain or prevent or impose any adverse
material conditions on the Line of Business Transfer, the
Spinoff and the transactions contemplated thereby, and (D) no
law or regulation shall be applicable which, in the sole
judgment of the Agent, could restrain or prevent or impose any
adverse material conditions on the Line of Business Transfer,
the Spinoff and the transactions contemplated thereby or be
violated by the consummation of any thereof;
6.2. CONDITIONS OF REVOLVING LOANS AND LETTER OF CREDIT. The
obligations of the Lenders to make any Revolving Loans, and the Issuing Bank to
issue Letters of Credit and Bank of America to make Swing Line Loans, hereunder
on or subsequent to the Closing Date are subject to the satisfaction of the
following conditions:
(a) the Agent or, in the case of Swing Line Loans, Bank of
America shall have received a Borrowing Notice if required by ARTICLE
II;
(b) the representations and warranties of the Credit Parties
set forth in ARTICLE VII and in each of the other Loan Documents shall
be true and correct in all material respects on and as of the date of
such Advance, Swing Line Loan or Letter of Credit
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issuance or renewal, with the same effect as though such
representations and warranties had been made on and as of such date,
except to the extent that such representations and warranties expressly
relate to an earlier date (specifically, as to SECTION 7.4, Borrower
agrees to provide an updated SCHEDULE 7.4 annually, and further
specifically excepting the last sentence of SECTION 7.6 , all of
Sections 7.7(b), 7.10, 7.11 AND 7.14(a), and the last sentence of
SECTION 7.17) and except that the financial statements referred to in
SECTION 7.5(a) shall be deemed (solely for the purpose of the
representation and warranty contained in such SECTION 7.5(a) but not
for the purpose of any cross reference to such SECTION 7.5(a) or to the
financial statements described therein contained in any other provision
of SECTION 7.5 or elsewhere in ARTICLE 7) to be those financial
statements most recently delivered to the Agent and the Lenders
pursuant to SECTION 8.1 from the date financial statements are
delivered to the Agent and the Lenders in accordance with such Section;
(c) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance of a Letter of Credit, no Default or
Event of Default specified in ARTICLE X shall have occurred and be
continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal balance
of all outstanding Revolving Loans for each Lender shall not
exceed such Lender's Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line Outstandings
shall not exceed $10,000,000; and
(iv) a Revolving Loan, Swing Line Loan or a Letter of
Credit or renewal thereof, the sum of Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing
Line Outstandings shall not exceed the Total Revolving Credit
Commitment.
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ARTICLE VII
Representations and Warranties
------------------------------
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
7.1. ORGANIZATION AND AUTHORITY.
(a) The Borrower and each Subsidiary is a corporation duly
organized and validly existing under the laws of the jurisdiction of
its formation;
(b) The Borrower and each Subsidiary (i) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the
Transaction Documents, and (ii) is qualified to do business in every
jurisdiction in which failure so to qualify would have a Material
Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other
Transaction Documents to which it is a party;
(d) Each Guarantor has the power and authority to execute,
deliver and perform the Facility Guaranty and each of the other
Transaction Documents to which it is a party; and
(e) When executed and delivered, each of the Transaction
Documents to which any Credit Party is a party will be the legal, valid
and binding obligation or agreement, as the case may be, of such Credit
Party, enforceable against such Credit Party in accordance with its
respective terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law affecting
the enforceability of creditors' rights generally and to the effect of
general principles of equity which may limit the availability of
remedies (whether considered in a proceeding at law or in equity).
7.2. TRANSACTION DOCUMENTS. The execution, delivery and performance by
each Credit Party of each of the Transaction Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Credit Party required for the lawful execution, delivery
and performance thereof;
(b) do not violate any provisions of (i) any applicable law,
rule or regulation (ii) any judgment, writ, order, determination,
decree or arbitral award of any Governmental Authority or arbitral
authority binding on such Credit Party or its properties, (iii) the
Organizational Documents or Operating Documents of such Credit
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Party, in each case in clauses (i) and (ii) hereof, which violation
could reasonably be expected to have a Material Adverse Effect;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Credit Party or GenCorp or any of its
subsidiaries is a party, or by which the properties or assets of such
Credit Party or GenCorp or any of its subsidiaries are bound which
conflict, breach or event of default could reasonably be expected to
have a Material Adverse Effect; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Credit Party
except any Liens in favor of the Agent and the Lenders created by the
Loan Documents.
7.3. GOVERNMENTAL AUTHORIZATION. Except as set forth in SCHEDULE 7.3,
neither the respective businesses or properties of the Borrower or any
Subsidiary, nor any relationship between the Borrower or any Subsidiary and any
other Person, nor the execution, delivery and performance of the Transaction
Documents and the transactions contemplated hereby, is such as to require a
consent, approval or authorization of, or filing, registration or qualification
with, any Governmental Authority or other authority or any other Person on the
part of the Borrower or any Subsidiary as a condition to the execution, delivery
and performance of, or consummation of the transactions contemplated by, this
Agreement or the other Transaction Documents, or if so, such consent, approval,
authorization, filing, registration or qualification has been obtained or
effected, as the case may be.
7.4. CAPITALIZATION; SUBSIDIARIES; INVESTMENTS. All outstanding shares
of capital stock of the Borrower have been duly authorized and are listed on
SCHEDULE 7.4. Except as set forth on SCHEDULE 7.4, there are no outstanding
subscriptions, warrants, options, calls, commitments or other rights (preemptive
or otherwise) or agreements to which the Borrower or, to the knowledge of the
Borrower, any shareholder is bound relating to the issuance, sale or redemption
of shares of common stock of the Borrower. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in SCHEDULE 7.4 and such
schedule states the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and percentage of outstanding shares or other equity interest (including
options, warrants and other rights to acquire any interest) of each such class
of capital stock or other equity interest owned by the Borrower or by any such
Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable; and the Borrower and each such Subsidiary owns beneficially and
of record all the shares and other interests it is listed as owning in SCHEDULE
7.4, free and clear of any Lien other than Liens permitted under SECTION 9.4.
The Borrower has no investments and owns no interest in any other Person
(excluding Subsidiaries) other than as listed in SCHEDULE 7.4.
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7.5. FINANCIAL CONDITION.
(a) The Borrower has heretofore furnished to the Agent and
each Lender (i) audited consolidated financial statements of the
Borrower and its Subsidiaries for the Fiscal Years ending November 30,
1997 and November 30, 1998, consisting of a consolidated balance sheet
and the notes thereto and the related consolidated statements of
income, divisional equity and cash flows for the fiscal periods then
ended as examined and certified by Ernst & Young, LLP, and (ii)
Historical Unaudited Quarterly Statements, and (iii) pro forma
five-year projections, beginning with the Fiscal Year ending November
30, 1999, including pro forma balance sheets and income and cash flow
statements. Except as set forth therein, the financial statements
described in (i) and (ii) above (including the notes thereto) present
fairly after giving effect to the Business Transfer and the Spinoff,
the financial condition of the Borrower and its Subsidiaries as of the
end of such Fiscal Years and such quarterly periods and results of
their operations, cash flows and the changes in its divisional equity
for the Fiscal Years and interim period then ended, all in conformity
with GAAP applied on a Consistent Basis, subject however, in the case
of unaudited interim statements to year end audit adjustments and the
absence or reduced scope of footnote disclosures;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to SECTION 7.5(a)(i) hereof or (ii) the
date of the audited financial statements most recently delivered
pursuant TO SECTION 8.1(a) hereof, there has been no material adverse
change in the condition, financial or otherwise, of the Borrower, any
of its Subsidiaries or, in respect of clause (i), the Transferred
Business or in the businesses, properties, performance or operations of
the Borrower or any of its Subsidiaries, nor have such businesses or
properties been materially adversely affected as a result of any fire,
explosion, earthquake, accident, strike, lockout, combination of
workers, flood, embargo or act of God;
(c) except as set forth in the financial statements referred
to in SECTION 7.5(a) or in SCHEDULE 7.5 or permitted by SECTION 9.5,
neither Borrower nor any Subsidiary has incurred any material
Indebtedness which remains outstanding or unsatisfied.
7.6. TITLE TO PROPERTIES. The Borrower and each of its Subsidiaries has
good and marketable title to all its real and personal properties, subject to no
transfer restrictions or Liens of any kind, except for (i) the transfer
restrictions and Liens described in SCHEDULE 7.6, (ii) Liens permitted by
SECTION 9.4, (iii) with respect to any personal property that constitutes a
security, transfer restrictions imposed under Federal and state securities laws
and regulations, and (iv) the lack of title or the presence of such transfer
restrictions that could not reasonably be expected to have a Material Adverse
Effect. All real property owned or leased by the Borrower and its Subsidiaries
are described on SCHEDULE 7.6 hereto.
7.7. LITIGATION; LOSS CONTINGENCIES. Except as set forth in SCHEDULE
7.7 hereto, there are no legal actions, suits, proceedings, claims or disputes
pending, or to the knowledge of the Borrower threatened, at law, in equity, in
arbitration or before any Governmental Authority
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against or, to the Borrower's knowledge, directly affecting the Borrower or any
of its Subsidiaries (a) with respect to this Agreement or any of the other
Transaction Documents, or any of the transactions contemplated hereby, or (b)
which, in the opinion of management, after reviewing the information which is
currently available with respect to such matters and consulting with the
Borrower's counsel, could reasonably be expected to have a Material Adverse
Effect. No injunction, writ, temporary restraining order, decree or order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any of the other Transaction Documents. Except as set forth in SCHEDULE 7.7
hereto, there are no material Contingent Obligations which are not, or are not
in effect, Guaranties or "loss contingencies" (as defined in Statement of
Financial Accounting Standards No. 5 issued by the Financial Accounting
Standards Board in March 1975 ("FAS 5")), which would be required by FAS 5 to be
disclosed or accrued in consolidated financial statements of the Borrower were
such financial statements prepared at the time this representation and warranty
is made or deemed made.
7.8. NO DEFAULT OR BREACH. No default or event has occurred and is
continuing or would result from the consummation of the transactions
contemplated hereunder and under the other Transaction Documents which
constitutes or, with the giving of notice or passage of time or both, would
constitute an Event of Default. Except as set forth on SCHEDULE 7.8 hereto,
after giving effect to the transactions contemplated hereby and by the other
Transaction Documents, neither the Borrower nor any of its Subsidiaries nor, to
the best of the Borrower's knowledge, with respect to any Material Contract, any
other party thereto, is or will be in default under or with respect to any
contractual obligation in any respect, which, individually or together with all
such defaults, could reasonably be expected to have a Material Adverse Effect.
7.9. MATERIAL CONTRACTS. Each Material Contract is, and after giving
effect to the consummation of the transactions contemplated hereby and by the
other Transaction Documents will be, in full force and effect in accordance with
the terms thereof, except to the extent any such Material Contract expires or
terminates in accordance with its terms as in effect on the Closing Date.
7.10. RELATED PARTY AGREEMENTS. Except with respect to the Line of
Business Transfer Documents and the Spinoff Documents or as set forth on
SCHEDULE 7.10, neither the Borrower nor any of its Subsidiaries is a party to
any material contract, agreement or commitment (a) with any director, officer or
shareholder of the Borrower (both before and after giving effect to the
transactions contemplated hereby and by the other Transaction Documents), or,
(b) to the Borrower's knowledge, with any Person in which any such director,
officer or shareholder has any direct or indirect interest.
7.11. ENVIRONMENTAL MATTERS. Based upon currently available information
and reasonable investigation and inquiry, to the best of management's knowledge,
except as set forth in SCHEDULE 7.11 hereto:
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(a) The Borrower and its Subsidiaries are in compliance with
all Environmental Laws, except to the extent that any non-compliance
would not reasonably be expected to have a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws that would reasonably be expected to
have a Material Adverse Effect, nor does the Borrower have knowledge or
reason to believe that any such notice will be received or is being
threatened.
(c) No judicial, governmental or administrative proceedings
are pending or are threatened against the Borrower or any of its
Subsidiaries under any Environmental Law, nor are there any consent
decrees or court decrees, consent orders, or administrative orders
outstanding under any Environmental Law with respect to the Borrower or
any of its Subsidiaries that would reasonably be expected to have a
Material Adverse Effect.
(d) There has been no release of Hazardous Materials arising
from, generated by or related to the operations of the Borrower or any
of its Subsidiaries, or for which the Borrower or any of its
Subsidiaries has retained or assumed liability in amounts or in a
manner that would reasonably be expected to result in a Material
Adverse Effect.
(e) Environmental liabilities with respect to continued and
discontinued operations of GenCorp other than the Transferred Business
have not been assumed by the Borrower, will remain the obligations of
GenCorp after the Spinoff, and GenCorp has agreed to indemnify the
Borrower for any such environmental liabilities pursuant to the terms
of the Distribution Agreement.
7.12. COMPLIANCE WITH LAW.
(a) CONDUCT OF BUSINESS. The Borrower and its Subsidiaries
have conducted their business so as to comply with, and are in
compliance with, all Requirements of Law, except where the failure to
so comply could not reasonably be expected to have a Material Adverse
Effect.
(b) LICENSES. The Borrower and its Subsidiaries have all
permits, certificates, licenses, approvals and other authorizations
required by any Governmental Authority in connection with the operation
of their business, except where the failure to obtain such requirements
could not reasonably be expected to have a Material Adverse Effect.
7.13. TAXES. The Borrower and each of its Subsidiaries has filed or
caused to be filed all Federal, state, local and foreign tax returns which are
required to be filed by it and which the failure to file could reasonably be
expected to have a Material Adverse Effect and, except for taxes and assessments
being contested in good faith by appropriate proceedings diligently conducted
and against which reserves reflected in the financial statements described in
SECTION 7.5(a) or more recently delivered pursuant to SECTION 8.1(a) and as
required by GAAP have been
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established, have paid or caused to be paid all taxes as shown on said returns
or on any assessment received by it, to the extent that such taxes have become
due unless the failure to pay the same could not reasonably be expected to have
a Material Adverse Effect.
7.14. EMPLOYEE BENEFIT PLANS. Except as set forth in SCHEDULE 7.14
hereto:
(a) Neither the Borrower nor any ERISA Affiliate maintains or
contributes to, or has any obligation under, any Employee Benefit Plans
other than those identified on SCHEDULE 7.14 hereto;
(b) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all Foreign
Benefit Laws with respect to all Employee Benefit Plans except where
failure to comply could not reasonably be expected to have a Material
Adverse Effect and except for any required amendments for which the
remedial amendment period as defined in Section 401(b) of the Code has
not yet expired. Each Employee Benefit Plan that is intended to be
qualified under Section 401(a) of the Code has been determined by the
Internal Revenue Service to be so qualified (or an application for such
a determination by the Internal Revenue Service has been submitted to
the Internal Revenue Service on a timely basis so as to preserve the
remedial amendment period), and each trust related to such plan has
been determined to be exempt under Section 501(a) of the Code. No
material liability has been incurred by the Borrower or any ERISA
Affiliate which remains unsatisfied for any taxes or penalties with
respect to any Employee Benefit Plan or any Multiemployer Plan;
(c) No Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code)
been incurred (without regard to any waiver granted under Section 412
of the Code), nor has any funding waiver from the IRS been received or
requested with respect to any Pension Plan, nor has the Borrower or any
ERISA Affiliate failed to make any contributions or to pay any amounts
due and owing as required by Section 412 of the Code, Section 302 of
ERISA or the terms of any Pension Plan prior to the due dates of such
contributions under Section 412 of the Code or Section 302 of ERISA,
nor has there been any event requiring any disclosure under Section
4041(c)(3)(C), 4063(a) or 4068(f) of ERISA with respect to any Pension
Plan;
(d) Neither the Borrower nor any ERISA Affiliate has: (i)
engaged in a nonexempt prohibited transaction described in Section 406
of ERISA or Section 4975 of the Code, (ii) incurred any liability to
the PBGC which remains outstanding other than the payment of premiums
and there are no premium payments which are due and unpaid, (iii)
failed to make a required contribution or payment to a Multiemployer
Plan or (iv) failed to make a required installment or other required
payment under Section 412 of the Code, unless such action or failure to
act could not reasonably be expected to have a Material Adverse Effect;
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(e) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan;
(f) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan.
7.15. EMPLOYMENT MATTERS. Except as disclosed on SCHEDULE 7.15 hereto,
the Borrower and all Subsidiaries are in compliance with all applicable laws,
rules and regulations pertaining to labor or employment matters, including
without limitation those pertaining to wages, hours, occupational safety and
taxation, the noncompliance with which could reasonably be expected to have a
Material Adverse Effect, and there is neither pending nor, to the knowledge of
the Borrower, any threatened litigation, administrative proceeding or
investigation in respect of such matters an adverse ruling or determination in
which could reasonably be expected to have a Material Adverse Effect. Except as
disclosed on SCHEDULE 7.15 hereto, neither the Borrower nor any of its
Subsidiaries is party to any collective bargaining agreement with any labor
union or similar organization.
7.16. INTELLECTUAL PROPERTY. The Borrower and its Subsidiaries own, or
have a license or otherwise have the right to continue to use, without violating
the rights of any other Person, in all jurisdictions in which they carry on
business, all patents (including all applications, renewals, reissues,
extensions, divisions, continuations and extensions thereof), trademarks
(including both registered and unregistered trademarks and applications
therefor), service marks, trade names, copyrights (including all registrations,
renewals, modifications and extensions thereof), and know-how and trade secrets
(collectively, the "Intellectual Property"), currently in use but, to the extent
there is a failure to so own, license or possess the right to use such
Intellectual Property, such failure could not reasonably be expected to have a
Material Adverse Effect. Except as set forth on SCHEDULE 7.16 hereto, none of
the Intellectual Property is subject to any Lien other than Liens permitted
under SECTION 9.4. To the knowledge of the Borrower, no claim which could
reasonably be expected to have a Material Adverse Effect of any Person is
pending or threatened to the effect that any current use or ownership of the
Intellectual Property infringes upon or conflicts with any such rights of any
Person.
7.17. INSURANCE. The Borrower and its Subsidiaries maintain, to the
extent that reasonable commercial efforts permit them to, insurance with
financially sound and reputable insurance companies, or self-insure where the
Borrower deems appropriate, on all their properties in at least such amounts and
against at least such risks (but, including in any event, public liability,
product liability and business interruption) as are usually insured against or
self-insured in the same general area by companies engaged in the same or a
similar business. All policies of insurance owned or maintained by the Borrower
and its Subsidiaries and the coverages provided thereby are described on
SCHEDULE 7.17 hereto.
7.18. BOOKS AND RECORDS. The books and records of the Borrower and its
Subsidiaries, including the minutes of director and shareholder meetings,
consents or actions, are accurate, current and complete in all material
respects.
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7.19. JUDGMENTS AND OTHER RESTRICTIONS. Neither the Borrower nor any
Subsidiary is a party to any judgment, order, decree or any agreement or
instrument or subject to restrictions which could reasonably be likely to have a
Material Adverse Effect or to materially adversely affect the ability of the
Borrower or any Guarantor to observe the covenants and agreements contained
herein.
7.20 INVESTMENT COMPANY; MARGIN STOCK. Neither the Borrower nor any
Subsidiary is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended (15 U.S.C.
ss. 80a-1, et seq.). The application of the proceeds of the Loans and repayment
thereof by the Borrower and the performance by the Borrower of the transactions
contemplated by this Agreement will not violate any provision of said Act, or
any rule, regulation or order issued by the Securities and Exchange Commission
thereunder, in each case as in effect on the date hereof. Neither the Borrower
nor any Subsidiary owns any "margin stock" as such term is defined in Regulation
U, as amended (12 C.F.R. Part 221), of the Board. The proceeds of the borrowings
made pursuant to ARTICLES II hereof will be used by the Borrower and its
Subsidiaries only for the purposes set forth in SECTION 2.2 hereof. None of such
proceeds will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin stock or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry margin stock or
for any other purpose which might constitute any of the Loans under this
Agreement a "purpose credit" within the meaning of said Regulation U or
Regulation X (12 C.F.R. Part 224) of the Board. Neither the Borrower nor any
agent acting on its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof.
7.21. DISCLOSURE.
(a) THIS AGREEMENT AND OTHER TRANSACTION DOCUMENTS. This
Agreement and the other Transaction Documents (including any and all
schedules and exhibits thereto), and all other documents and
certificates furnished to the Agent by the Borrower or its Subsidiaries
on or prior to the Closing Date did not and do not contain any untrue
statement of a material fact or omit, to the extent such agreements,
documents and certificates are taken as a whole, to state a material
fact necessary in order to make the statements contained herein or
therein, in the light of the circumstances under which they were made,
not misleading.
(b) MATERIAL ADVERSE EFFECT. There is no fact known to the
Borrower or any of its Subsidiaries which the Borrower has not
disclosed to the Agent in writing that has had or could be reasonably
expected to have a Material Adverse Effect.
7.22. HEDGING ARRANGEMENTS. The Borrower and its Subsidiaries have no
interest rate or currency swap arrangements nor is the Borrower or any of its
Subsidiaries party to any
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transaction involving derivatives or other hedging arrangements, except as set
forth on SCHEDULE 7.22 hereto and permitted under SECTION 9.14 hereof.
7.23. SOLVENCY. Each Credit Party is Solvent after giving effect to the
transactions contemplated by the Transaction Documents.
7.24. NO CONSENTS, ETC. Neither the respective businesses or properties
of the Credit Parties or any Subsidiary, nor any relationship among the Credit
Parties or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Transaction
Documents and the transactions contemplated thereby, is such as to require a
consent, approval or authorization of, or filing, registration or qualification
with, any Governmental Authority or any other Person on the part of any Credit
Party as a condition to the execution, delivery and performance of, or
consummation of the transactions contemplated by the Transaction Documents,
which, if not obtained or effected, would be reasonably likely to have a
Material Adverse Effect, or if so, such consent, approval, authorization,
filing, registration or qualification has been duly obtained or effected, as the
case may be.
7.25. YEAR 2000 COMPLIANCE. The Borrower and its Subsidiaries have (i)
initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by information
received from suppliers and vendors) that could reasonably be expected to be
adversely affected by the Year 2000 Problem, (ii) developed a plan and timeline
for addressing the Year 2000 Problem affecting material computer applications
and other systems and operations of the Borrower and its Subsidiaries and their
key vendors and customers not later September 30, 1999, with the exception of
GenCorp Wallcoverings (UK) Limited, whose Year 2000 Problem will be addressed
not later than October 31, 1999, and (iii) to date, implemented that plan
substantially in accordance with that timetable. The Borrower reasonably
believes that all computer applications and other systems and operations that
are material to its or any of its Subsidiaries' business and operations will on
a timely basis be Year 2000 Compliant, except to the extent that a failure to do
so could not reasonably be expected to have Material Adverse Effect.
7.26. TAX TREATMENT OF SPINOFF. The Spinoff has been accomplished
substantially simultaneously with the making of the initial advance hereunder
consistent with the factual representations and assumptions presented to the IRS
by GenCorp in its request for the IRS Ruling Letter.
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ARTICLE VIII
Affirmative Covenants
---------------------
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
8.1. FINANCIAL REPORTS, ETC.
(a) As soon as practical and in any event within 95 days after
the end of each Fiscal Year of the Borrower, deliver or cause to be
delivered to the Agent and each Lender (i) consolidated and, if there
are any Material Subsidiaries, consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such Fiscal Year, and
the notes thereto, and the related consolidated and, if there are any
Material Subsidiaries, consolidating statements of income,
stockholders' equity and cash flows, and the respective notes thereto,
for such Fiscal Year, setting forth (other than for consolidating
statements) comparative financial statements for the preceding Fiscal
Year, all prepared in accordance with GAAP applied on a Consistent
Basis and containing, with respect to the consolidated financial
statements, opinions of Ernst & Young, LLP or other such independent
certified public accountants selected by the Borrower and approved by
the Agent, which are unqualified as to the scope of the audit performed
and as to the "going concern" status of the Borrower and without any
exception not acceptable to the Lenders, and (ii) a certificate of a
Responsible Officer demonstrating compliance with SECTIONS 9.1(a) and
9.1(b) and 9.3, which certificate shall be in the form of EXHIBIT H;
(b) as soon as practical and in any event within 50 days after
the end of each fiscal quarter (except the last fiscal quarter of any
Fiscal Year), deliver to the Agent and each Lender (i) consolidated
and, if there are any Material Subsidiaries, consolidating balance
sheets of the Borrower and its Subsidiaries as at the end of such
fiscal quarter, and the related consolidated and, if there are any
Material Subsidiaries, consolidating statements of income,
stockholders' equity and cash flows for such fiscal quarter and for the
period from the beginning of the then current Fiscal Year through the
end of such reporting period, and accompanied by a certificate of a
Responsible Officer to the effect that such financial statements
present fairly the financial position of the Borrower and its
Subsidiaries as of the end of such fiscal period and the results of
their operations and the changes in their financial position for such
fiscal period, in conformity with the standards set forth in SECTION
7.5(a) with respect to interim financial statements, and (ii) a
certificate of a Responsible Officer containing computations for such
quarter comparable to that required pursuant to SECTION 8.1(a)(ii);
(c) together with each delivery of the financial statements
required by SECTION 8.1(a)(i), deliver to the Agent and each Lender a
letter from the Borrower's accountants specified in SECTION 8.1(a)(i)
stating that in performing the audit necessary to render an opinion on
the financial statements delivered under SECTION 8.1(a)(i), they
obtained no knowledge of any Default or Event of Default by the
Borrower in the fulfillment of the
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terms and provisions of this Agreement insofar as they relate to
financial matters (which at the date of such statement remains
uncured); or if the accountants have obtained knowledge of such Default
or Event of Default, a statement specifying the nature and period of
existence thereof;
(d) promptly upon their becoming available to the Borrower,
deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Borrower or
any Subsidiary shall file with the Securities and Exchange Commission
(or any successor thereto) or any securities exchange and (ii) any
proxy statement distributed by the Borrower or any Subsidiary to its
shareholders, bondholders or the financial community in general;
(e) concurrently with the delivery of the financial statements
referred to in SECTION 8.1(a) and the delivery of the financial
statements required to be delivered under SECTION 8.1(b) at the end of
the second quarterly period of each Fiscal Year of the Borrower,
deliver or cause to be delivered to the Agent and each Lender a report
of the Borrower with respect to the environmental matters affecting the
Borrower and the Subsidiaries in the same level of detail and of the
same scope as that furnished to the lenders under the Existing GenCorp
Credit Agreement;
(f) concurrently with the delivery of the financial statements
required to be delivered under SECTION 8.1(a) OR (b), deliver or cause
to be delivered to the Agent and each Lender notice of any request for
indemnity under the terms of the Spinoff Documents and the Line of
Business Transfer Documents either delivered to, or received from,
GenCorp which, when aggregated with all other such requests would
exceed $10,000,000 and, with respect to such requests from GenCorp, the
position of the Borrower in response to such request; and
(g) promptly, from time to time, deliver or cause to be
delivered to the Agent and each Lender such other information regarding
Borrower's and any Subsidiary's operations, business affairs and
financial condition as the Agent or such Lender may reasonably request.
Subject to the provisions of SECTION 12.1(h), the Agent and the Lenders
are hereby authorized to deliver a copy of any such financial or other
information delivered hereunder to the Lenders (or any affiliate of any Lender
as necessary or beneficial to fulfill the obligations of any Lender hereunder)
or to the Agent, to any Governmental Authority having jurisdiction over the
Agent or any of the Lenders pursuant to any written request therefor or in the
ordinary course of examination of loan files, or to any other Person who shall
acquire or consider the assignment of, or acquisition of any participation
interest in, any Obligation permitted by this Agreement.
8.2. MAINTAIN PROPERTIES. Maintain all properties necessary to its
operations in good working order and condition and make all needed repairs,
replacements and renewals to such properties, in each case as are reasonably
necessary to conduct its business as currently conducted or as contemplated
hereby, all in accordance with customary and prudent business practices.
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8.3. EXISTENCE, QUALIFICATION, ETC. Except as otherwise expressly
permitted under SECTION 9.8, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its qualification to do business as a foreign
corporation and good standing in each jurisdiction in which its ownership or
lease of property or the nature of its business makes such license or
qualification necessary except where the failure to so qualify could not
reasonably be expected to have a Material Adverse Effect.
8.4. REGULATIONS AND TAXES. Comply in all material respects with all
statutes and governmental regulations and pay all taxes, assessments,
governmental charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, would become a Lien against any of its properties except any
thereof being contested in good faith by appropriate proceedings diligently
conducted, as to which no Lien has attached to and is enforceable against any of
its properties and against which adequate reserves as required by GAAP have been
established.
8.5. INSURANCE, PROCEEDS AND CONDEMNATION. (a) Keep all of its
insurable properties adequately insured at all times with responsible insurance
carriers against loss or damage by fire and other hazards to the extent and in
the manner as are currently maintained and are prudent when considered in light
of the Borrower's properties and businesses, (b) maintain general public
liability insurance at all times with responsible insurance carriers against
liability on account of damage to persons and property having such limits,
deductibles, exclusions, co-insurance and other provisions providing coverages
that are currently maintained and are prudent when considered in light of the
Borrower's properties and businesses, and (c) maintain existing insurance under
all applicable workers' compensation laws (or in the alternative, maintain
required reserves if self-insured for workers' compensation purposes). Each of
the policies of insurance described in this SECTION 8.5(a) and (b) shall provide
that the insurer shall give the Agent not less than thirty (30) days' prior
written notice before any such policy shall lapse or be terminated or cancelled.
8.6. TRUE BOOKS. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements.
8.7. YEAR 2000 COMPLIANCE. The Borrower will (i) promptly notify the
Agent and the Lenders in the event the Borrower discovers or determines that any
computer application or other system or operation (including those affected by
information received from its suppliers and vendors) that is material to its or
any of its Subsidiaries' business and operations will not be Year 2000 Compliant
on a timely basis, and (ii) take all actions reasonably necessary to make such
computer applications or other systems or operations Year 2000 Compliant, except
to the extent that such failure could not reasonably be expected to have a
Material Adverse Effect.
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8.8. RIGHT OF INSPECTION. Permit any Person designated by any Lender or
the Agent to visit and inspect any of the properties, corporate books and
financial reports of the Borrower or any Subsidiary and to discuss its affairs,
finances and accounts with its principal officers and independent certified
public accountants, all at reasonable times, at reasonable intervals and with
reasonable prior notice to a Responsible Officer; PROVIDED, HOWEVER, that prior
to the occurrence and continuance of an Event of Default, the costs associated
with all such visits and inspections by a Lender shall be borne by such Lender
and the costs associated with such visits and inspections by the Agent, in
excess of one visit and inspection each calendar year (the reasonable costs with
respect to which shall be borne by the Borrower) shall be borne by the Agent.
After the occurrence and during the continuation of an Event of Default, all
costs associated with such visits and inspections by the Agent or any Lender
shall be borne by the Borrower.
8.9. OBSERVE ALL LAWS. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority applicable to the Borrower or any of its Subsidiaries
with respect to the conduct of its business.
8.10. GOVERNMENTAL LICENSES. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted, except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
8.11. COVENANTS EXTENDING TO OTHER PERSONS. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in SECTIONS 8.2 through 8.10, and 8.14
through 8.19 inclusive.
8.12. OFFICER'S KNOWLEDGE OF DEFAULT. Upon any senior executive officer
of the Borrower obtaining knowledge of any Default or Event of Default hereunder
or under any other obligation of the Borrower or any Subsidiary to any Lender,
cause such officer or a Responsible Officer to promptly notify the Agent of the
nature thereof, the period of existence thereof, and what action the Borrower or
such Subsidiary proposes to take with respect thereto.
8.13. SUITS OR OTHER PROCEEDINGS. Upon any Responsible Officer of the
Borrower obtaining knowledge of any litigation or other proceedings being
instituted against the Borrower or any Subsidiary by any Person, including
without limitation any Governmental Authority, or any attachment, levy,
execution or other process being instituted against any assets of the Borrower
or any Subsidiary, making a claim or claims in an aggregate amount greater than
$10,000,000 not otherwise covered by insurance, reasonably promptly deliver to
the Agent written notice thereof stating the nature and status of such
litigation, dispute, proceeding, levy, execution or other process.
8.14. ENVIRONMENTAL LAWS.
(a) Comply with Environmental Laws, or contest in good faith
the applicability of any such Environmental Laws or liability
thereunder, except to the extent that failure to do so would not
reasonably be expected to have a Material Adverse Effect.
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(b) Promptly give notice to the Agent if the Borrower or any
of its Subsidiaries is in violation of or is not in compliance with or
has incurred liability or potential liability under Environmental Laws,
unless such violation or noncompliance could not reasonably be expected
to have a Material Adverse Effect, and promptly provide to the Agent
accurate and complete copies of any and all letters, notices,
complaints, orders, directives, claims or citations received by the
Borrower or any of its Subsidiaries relating to (i) violation or
alleged violation by the Borrower or any of its Subsidiaries of any
applicable Environmental Laws; (ii) release or threatened release into
the environment by the Borrower or any of its Subsidiaries, or by any
person handling, transporting or disposing of any Hazardous Materials
on behalf of the Borrower or any of its Subsidiaries, or any facility
or property owned or leased or operated by the Borrower or any of its
Subsidiaries, of any Hazardous Material, except where occurring
legally; or (iii) liability or alleged liability of the Borrower or any
of its Subsidiaries for the costs of cleaning up, removing, remediating
or responding to a release of Hazardous Materials, unless such
violation, release or liability could not reasonably be expected to
have a Material Adverse Effect.
(c) Defend, indemnify and hold harmless the Agent and the
Lenders, and their respective employees, agents, officers and
directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind
or nature known or unknown, contingent or otherwise, arising out of, or
in any way relating to the violation of or noncompliance with or
liability under any Environmental Laws applicable to the operations of,
liabilities assumed by, or real property owned or operated by the
Borrower or any of its Subsidiaries, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, attorneys' and consultants' fees, investigation and
laboratory fees, court costs and litigation expenses, except to the
extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. The
provisions of this SECTION 8.14(c) shall survive repayment of the
Obligations and occurrence of the Facility Termination Date.
8.15. FURTHER ASSURANCES. At the Borrower's cost and expense, upon
request of the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents, certificates,
financing and continuation statements, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the reasonable opinion of
the Agent to carry out more effectively the provisions and purposes of this
Agreement and the other Loan Documents.
8.16. EMPLOYEE BENEFIT PLANS.
(a) With reasonable promptness, and in any event within thirty
(30) days after the end of the Fiscal Year in which such event occurs,
give notice to the Agent of (i) the establishment of any new Employee
Benefit Plan (which notice shall include a copy of such plan), (ii) the
commencement of contributions to any Employee Benefit Plan to
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which the Borrower or any of its ERISA Affiliates was not previously
contributing, (iii) any material increase in the benefits of any
existing Employee Benefit Plan, (iv) each funding waiver request filed
with respect to any Employee Benefit Plan and all communications
received or sent by the Borrower or any ERISA Affiliate with respect to
such request and (v) the failure of the Borrower or any ERISA Affiliate
to make a required installment or payment under Section 302 of ERISA or
Section 412 of the Code (in the case of Employee Benefit Plans
regulated by the Code or ERISA) or under any Foreign Benefit Law (in
the case of Employee Benefit Plans regulated by any Foreign Benefit
Law) by the due date;
(b) Promptly and in any event within thirty (30) days of
becoming aware of the occurrence or forthcoming occurrence of any (i)
Termination Event or (ii) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Pension Plan or any trust created thereunder, and
unless such occurrence could not reasonably be expected to have a
Material Adverse Effect, deliver to the Agent a notice specifying the
nature thereof, what action the Borrower or any ERISA Affiliate has
taken, is taking or proposes to take with respect thereto and, when
known, any action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days deliver to the Agent copies of (i) any unfavorable
determination letter from the Internal Revenue Service regarding the
qualification of an Employee Benefit Plan under Section 401(a) of the
Code, (ii) all notices received by the Borrower or any ERISA Affiliate
of the PBGC's or any Governmental Authority's intent to terminate any
Pension Plan or to have a trustee appointed to administer any Pension
Plan, (iii) each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) filed by the Borrower or any ERISA Affiliate
with the Internal Revenue Service with respect to each Pension Plan and
(iv) all notices received by the Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA unless any such
notice relates to an event or condition that could not reasonably be
expected to have a Material Adverse Effect. The Borrower will notify
the Agent in writing within five (5) Business Days of the Borrower or
any ERISA Affiliate obtaining knowledge or reason to know that the
Borrower or any ERISA Affiliate has filed or intends to file a notice
of intent to terminate any Pension Plan under a distress termination
within the meaning of Section 4041(c) of ERISA.
8.17. CONTINUED OPERATIONS. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted.
8.18. NEW SUBSIDIARIES. Within thirty (30) days after (i) the
acquisition or creation of any new Subsidiary which is a Domestic Material
Subsidiary, or (ii) an existing Domestic Subsidiary becoming a Material Domestic
Subsidiary, cause to be delivered to the Agent for the benefit of the Lenders
each of the following:
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(a) a Facility Guaranty executed by such Domestic Material
Subsidiary substantially in the form of EXHIBIT I;
(b) an opinion of counsel to the Domestic Material Subsidiary
dated as of the date of delivery of the Facility Guaranty provided for
in this SECTION 8.18 and addressed to the Agent and the Lenders, in
form and substance reasonably acceptable to the Agent (which opinion
may include assumptions and qualifications of similar effect and in the
form of and addressing the matters relating to Guarantors set forth in
the opinions delivered pursuant to SECTION 6.1(a)(ii) hereof, where
applicable); and
(c) current copies of the Organizational Documents and
Operating Documents of such Domestic Material Subsidiary, certified
resolutions (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if
required by such Organizational Documents, Operating Documents or
applicable law, of the shareholders, members or partners) of such
Domestic Material Subsidiary authorizing the actions and the execution
and delivery of documents described in this SECTION 8.18.
8.19. COMPLIANCE WITH MATERIAL CONTRACTS. Comply with the terms of all
Material Contracts and maintain the terms of such Material Contracts as in
effect on the Closing Date, except to the extent such noncompliance or failure
to maintain could not reasonably be expected to have and does not have a
Material Adverse Effect.
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ARTICLE IX
Negative Covenants
------------------
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit any
Subsidiary to:
9.1. FINANCIAL COVENANTS.
(a) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated
Leverage Ratio as of the end of any Four-Quarter Period to be greater
than 3.25 to 1.00.
(b) CONSOLIDATED INTEREST COVERAGE RATIO. Permit the
Consolidated Interest Coverage Ratio as of the end of any Four-Quarter
Period to be less than 3.50 to 1.00.
9.2. ACQUISITIONS. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are substantially the same as one or more
line or lines of business conducted by the Borrower and its Subsidiaries, (ii)
no Default or Event of Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to such Acquisition,
(iii) the Borrower shall have furnished to the Agent (A) pro forma historical
financial statements as of the end of the most recently completed Fiscal Year of
the Borrower and most recent interim fiscal quarter, if applicable, giving
effect to such Acquisition and (B) a certificate in the form of EXHIBIT H
prepared on a historical pro forma basis as of the most recent date for which
financial statements have been furnished pursuant to SECTION 7.5(a) or SECTION
8.1(a) OR (b) giving effect to such Acquisition, which certificate shall
demonstrate that no Default or Event of Default would exist immediately after
giving effect thereto, and (iv) the Person acquired shall be a wholly-owned
Subsidiary, or be merged into the Borrower or a wholly-owned Subsidiary,
immediately upon consummation of the Acquisition (or if assets are being
acquired, the acquiror shall be the Borrower or a wholly-owned Subsidiary).
9.3. CAPITAL EXPENDITURES. Make or become committed to make Capital
Expenditures, which exceed $75,000,000 in the aggregate in any Fiscal Year of
the Borrower (on a noncumulative basis, with the effect that amounts not
expended in any Fiscal Year may not be carried forward to a subsequent period).
9.4. LIENS. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, other than the
following (all of which shall be collectively referred to as "Permitted Liens"):
(a) Liens existing as of the date hereof and as set forth in
SCHEDULE 7.6;
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(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained as required by GAAP;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
30 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained as required by GAAP;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof
to the Borrower or any Subsidiary;
(f) purchase money Liens to secure Indebtedness on any real
property or equipment otherwise permitted hereunder and incurred to
purchase such fixed assets, provided such Indebtedness represents not
more than 75% of the purchase price of such fixed assets as of the date
of purchase thereof and no property other than the assets so purchased
is subject to such Liens;
(g) Liens incurred in connection with Capital Leases otherwise
permitted hereunder provided that no other property other than the
property subject to such Capital Leases is subject to such Liens;
(h) Liens on assets acquired in an Acquisition permitted under
SECTION 9.2 so long as such Liens (i) are not incurred in contemplation
of such Acquisition and (ii) do not extend to any assets other than the
assets being acquired in such Acquisition; and
(i) other Liens securing Indebtedness in de minimis amounts,
but in no event securing Indebtedness in an aggregate amount in excess
of $5,000,000.
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9.5. INDEBTEDNESS.
(a) Incur, create, assume or permit to exist any Indebtedness
or any Guaranties, other than the following to the extent that an Event
of Default does not exist at the time of or occurs as a result of the
incurrence of such Indebtedness:
(i) the Senior Notes, subject to their issuance
pursuant to documentation and upon terms acceptable to the
Agent, which terms shall be no more restrictive than the terms
of this Agreement;
(ii) Rate Hedging Obligations not in excess of the
amounts permitted under SECTION 9.14;
(iii) Incurrence of indemnification obligations under
the terms of the Spinoff Documents or the Line of Business
Transfer Documents not to exceed $35,000,000, which
obligations have been either agreed to by the Borrower or
finally determined by appropriate judicial or alternate
dispute resolution proceedings without further appeal or
action available to or pursued by the Borrower; and
(iv) other Indebtedness in an aggregate principal
amount at any time outstanding not to exceed $50,000,000;
(b) Prepay, redeem or repurchase any Indebtedness or any
Guaranties prior to the stated maturity thereof or make any payment in
violation of any subordination terms or agreements applicable thereto,
other than prepayments of the Revolving Credit Facility in accordance
with the terms of this Agreement; and
(c) Amend, modify or supplement any of the instruments and
agreements evidencing or governing any Indebtedness or any Guaranties
to add or change any terms of subordination, events of default,
repayment or interest payable thereon or rights of conversion, put,
exchange or other rights from such terms and rights as in effect on the
Closing Date, except to the extent any such amendment, modification or
supplement could not be reasonably expected to have a Material Adverse
Effect or materially impair the position or interests of the Agent and
the Lenders.
9.6. TRANSFER OF ASSETS. Sell, lease, transfer or otherwise dispose of
any assets of Borrower or any Subsidiary other than (a) dispositions of
inventory in the ordinary course of business, (b) dispositions of assets of the
Borrower or any Subsidiary to a wholly owned Domestic Subsidiary which has
delivered all documents required under SECTION 8.18, or by any Subsidiary to the
Borrower, (c) dispositions of equipment, inventory or other assets (in addition
to dispositions thereof permitted under clause (a) above) which, in the
aggregate during any calendar year, have a fair market value or book value,
whichever is greater, of (i) less than 7.5% of Consolidated Total Assets as
calculated as of the Determination Date immediately prior to such disposition
and set forth on the corresponding balance sheet delivered pursuant to SECTION
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8.1(b) and (ii) when aggregated with the fair market value or book value,
whichever is greater, of all other asset dispositions during the term of this
Agreement, does not exceed 20% of Consolidated Total Assets as calculated on
November 30, 1998, (d) dispositions of equipment which is replaced by equipment
of equal or greater utility and value within thirty (30) days of the date of
disposition thereof, (e) dispositions of property that is substantially worn,
damaged, obsolete or, in the judgment of the Borrower, no longer best used or
useful in its business or that of any Subsidiary, (f) transfers of assets
necessary to give effect to merger or consolidation transactions permitted by
SECTION 9.8, (g) the disposition of Eligible Securities in the ordinary course
of management of the investment portfolio of the Borrower and its Subsidiaries,
(h) sales of accounts receivable in connection with any Permitted Asset
Securitization and (i) the disposition of corporate flight operations
transferred to the Borrower by GenCorp in the Line of Business Transfer.
9.7. INVESTMENTS. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower may maintain investments or
invest in:
(a) securities of any Person acquired in an Acquisition
permitted hereunder;
(b) Eligible Securities;
(c) investments existing as of the date hereof and as set
forth in SCHEDULE 7.4;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(e) loans and advances to and investments in Subsidiaries
which are Guarantors;
(f) investments, loans and advances to Persons who are not
Guarantors provided the aggregate outstanding principal amount of such
loans and advances shall not at any time exceed $25,000,000;
(g) loans and advances to employees of the Borrower for
travel, entertainment and relocation expenses in the ordinary course of
business;
(h) required investments in or contributions to (i) Employee
Benefit Plans, (ii) executive compensation plans, and (iii) stock or
option purchase or bonus plans or as required under ERISA or the Code
or the fiduciary standards thereunder.
9.8. MERGER OR CONSOLIDATION. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) sell,
transfer or lease or otherwise dispose of
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all or a substantial part of its assets (other than sales permitted under
SECTION 9.6; PROVIDED, HOWEVER, if no Default or Event of Default shall have
occurred and be continuing or otherwise result therefrom, (i) any Subsidiary of
the Borrower may merge or transfer all or substantially all of its assets into
or consolidate with the Borrower or any wholly owned domestic Material
Subsidiary of the Borrower which has delivered all documents required under
SECTION 8.18, and (ii) any other Person may merge into the Borrower or any
Subsidiary, and any Subsidiary may merge into any other Person in order to
consummate an Acquisition permitted by SECTION 9.2 provided (A) such Person
shall assume all obligations of such Subsidiary under any Loan Document and
deliver such agreements and other documents, including a Facility Guaranty, and
take such other action as the Agent may require to evidence or confirm its
express assumption of the obligations and liabilities of its predecessor
entities under the Loan Documents and shall be engaged in substantially the same
or similar lines of business of such Subsidiary and (B) the Borrower shall be
the surviving corporation if a party to any merger.
9.9. TRANSACTIONS WITH AFFILIATES. Enter into any transaction after the
Closing Date, including, without limitation, the purchase, sale, lease or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate of the Borrower, except (a) that such Persons may render services
to the Borrower or its Subsidiaries for compensation at the same rates generally
paid by Persons engaged in the same or similar businesses for the same or
similar services, (b) that the Borrower or any Subsidiary may render services to
such Persons for compensation at the same rates generally charged by the
Borrower or such Subsidiary and (c) in either case in the ordinary course of
business and upon terms no less favorable to the Borrower (or any Subsidiary)
than would be obtained in a comparable arm's-length transaction with a Person
not an Affiliate of the Borrower.
9.10. COMPLIANCE WITH ERISA, THE CODE AND FOREIGN BENEFIT LAWS. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC or to any Governmental Authority; or
(b) permit for a period of thirty (30) or more consecutive
days the aggregate present value of all benefit liabilities under all
Pension Plans to exceed the current value of the assets of such Pension
Plans allocable to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) to exist with respect
to any Pension Plan, whether or not waived for a period in excess of
twelve (12) consecutive months; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
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(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(I) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed unless such occurrence could not reasonably be expected to have
a Material Adverse Effect; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan which liability or increase, individually or together with all
similar liabilities and increases, could reasonably be expected to have
a Material Adverse Effect; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all respects with the provisions of ERISA, the Code, all
applicable Foreign Benefit Laws and all other applicable laws and the
regulations and interpretations thereof except where the failure to do
so would not have a Material Adverse Effect.
9.11. FISCAL YEAR. Change its Fiscal Year.
9.12. DISSOLUTION, ETC. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with (a) the dissolution or
liquidation of a Subsidiary in which all proceeds thereof are paid to the
Borrower or (b) a merger or consolidation permitted pursuant to SECTION 9.8.
9.13. LIMITATIONS ON SALES AND LEASEBACKS. Enter into any arrangement
or arrangements with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property with an aggregate value in excess of
$15,000,000, whether now owned or hereafter acquired in a single transaction or
series of transactions, which has been or is to be sold or transferred by the
Borrower or any Subsidiary to the Person leasing such property to the Borrower
or any Subsidiary or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such property or rental obligations
of the Borrower or any Subsidiary.
9.14. RATE HEDGING OBLIGATIONS. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except (a) pursuant to Swap Agreements in an aggregate
notional amount not to exceed at any time $375,000,000 and (b) forward currency
exchange agreements; PROVIDED, HOWEVER, that no Rate Hedging Obligations shall
be incurred for speculative purposes.
9.15. NEGATIVE PLEDGE CLAUSES. Enter into any agreement with any Person
other than the Agent and the Lenders pursuant to this Agreement or any other
Loan Documents which
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prohibits or limits the ability of any of the Borrower or any Subsidiary to
create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, PROVIDED that the
Borrower and any Subsidiary may enter into such an agreement in connection with,
and that applies only to, property acquired with the proceeds of purchase money
Indebtedness permitted hereunder.
9.16. RESTRICTED PAYMENTS. Make any Restricted Payment, issue or sell
capital stock of any Subsidiary of the Borrower (or any option, warrant or right
to acquire such stock) other than to the Borrower, or apply or set apart any of
their assets therefor or agree to do any of the foregoing other than (a) cash
dividends payable in the ordinary course of business on its capital stock and
(b) open-market or negotiated purchases of its common stock in an aggregate
amount of up to $25,000,000 during the term of this Agreement; PROVIDED,
HOWEVER, no such Restricted Payments under clause (a) or (b) above shall be made
if an Event of Default exists at the time of or occurs as a result of such
Restricted Payment.
9.17. REDEMPTION, PREPAYMENT, OR AMENDMENT OF SENIOR NOTES AND OTHER
INDEBTEDNESS.
(a) Prepay, redeem, purchase, defease or otherwise satisfy
prior to the scheduled maturity thereof in any manner any Indebtedness
(i) subordinated or junior in rights of payment to the Obligations
except for all of the foregoing not exceeding $25,000,000 in the
aggregate since the Closing Date, or (ii) in violation of any
subordination terms; or
(b) amend, modify or change in any manner any term or
condition of any of the Senior Notes so that the terms and conditions
thereof are less favorable to the Agent and the Lenders than the terms
thereof or more restrictive than the terms of this Agreement, in each
case as of the Closing Date.
9.18. AMENDMENT OF LINE OF BUSINESS TRANSFER DOCUMENTS AND SPINOFF
DOCUMENTS. Amend, modify or change in any manner any term or condition of any of
the Line of Business Transfer Documents or any of the Spinoff Documents (i) so
that the terms and conditions thereof are less favorable to the Agent and the
Lenders than the terms and conditions of such documents as of the Closing Date,
or (ii) that may be reasonably likely to result in a Material Adverse Effect.
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ARTICLE X
Events of Default and Acceleration
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10.1. EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of ARTICLE II or ARTICLE III or ARTICLE IV,
at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts, other than principal
of any Obligation, payable to any of the Lenders or the Agent on the
date on which the same shall be due and payable and such default shall
continue for a period of three (3) or more days; or
(c) if default shall be made in the performance or observance
of any covenant set forth in SECTION 8.8, 8.12, 8.13, 8.18 or ARTICLE
IX;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by a Responsible Officer from the Agent or a
senior executive officer of the Borrower becomes aware of such default,
or if a default shall be made in the performance or observance of, or
shall occur under, any covenant, agreement or provision contained in
any of the other Loan Documents (beyond any applicable grace period, if
any, contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or Lien in favor of the Agent or any
of the Lenders or delivered to the Agent or any of the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than as expressly provided for hereunder or thereunder or
with the express written consent of the Agent or by reason of any
action by the Agent or the Lenders), or any Credit Party shall so state
in writing, or if without the written consent of the Lenders, this
Agreement or any other Loan Document shall be disaffirmed or shall
terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than as expressly
provided for hereunder or thereunder or with the express written
consent of the Agent or by reason of any action by the Agent or the
Lenders); or
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(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to the Senior Notes or any other Indebtedness (other than the
Loans and other Obligations) of the Borrower or any Subsidiary in an
amount not less than $5,000,000 with respect to any individual
Indebtedness or $10,000,000 with respect to all Indebtedness in the
aggregate outstanding, or (ii) a default, which is not waived, in the
performance, observance or fulfillment of any term or covenant
contained in any agreement or instrument under or pursuant to which the
Senior Notes or any other such Indebtedness may have been issued,
created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, or (iii) any other event of default as specified in any
agreement or instrument under or pursuant to which the Senior Notes or
any other such Indebtedness may have been issued, created, assumed,
guaranteed or secured by the Borrower or any Subsidiary, and such
default or event of default shall continue for more than the period of
grace, if any, therein specified, or such default or event of default
shall permit the holder of any such Indebtedness (or any agent or
trustee acting on behalf of one or more holders) to accelerate the
maturity thereof or to require the mandatory redemption, repurchase or
call thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower or any Subsidiary pursuant to or in connection
with any Loan Document, or otherwise, shall be false or misleading in
any material respect when given; or
(g) if the Borrower or any Subsidiary shall be unable to pay
its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking liquidation, reorganization or arrangement or similar relief
under the Federal bankruptcy laws or any other applicable law or
statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or of the
whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower or
any Subsidiary seeking liquidation, reorganization or arrangement or
similar relief under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state,
which petition is not dismissed within sixty (60) days; or if, under
the provisions of any other law for the relief or aid of debtors, a
court of competent jurisdiction shall assume custody or control of the
Borrower or any Subsidiary or of the whole or any substantial part of
its properties, which control is not relinquished within sixty (60)
days; or if there is commenced against the Borrower or any Subsidiary
any proceeding or petition seeking reorganization, arrangement or
similar relief under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
which
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proceeding or petition remains undismissed for a period of sixty (60)
days; or if the Borrower or any Subsidiary takes any action to indicate
its consent to or approval of any such proceeding or petition; or
(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $10,000,000 is rendered against the Borrower
or any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or Subsidiaries' properties for
any amount in excess of $10,000,000 (individually or in the aggregate);
and such judgment, attachment, injunction or execution remains unpaid,
unstayed, undischarged, unbonded or undismissed for a period of sixty
(60) days; or
(j) if the Borrower or any Subsidiary shall (i) substantially
change the nature of its business from that currently engaged in or,
other than (A) in the ordinary course of business (as determined by
past practices), (B) in connection with any asset sale permitted under
SECTION 9.6 hereof or (C) (with respect only to a Subsidiary) as a
result of a merger permitted under SECTION 9.8 hereof, or (ii) suspend
all or any part of its operations material to the conduct of the
business of the Borrower or any Subsidiary for a period of more than
sixty (60) days; or
(k) if the Borrower or any Subsidiary shall breach any of the
material terms or conditions of any Swap Agreement or any operative
agreement relating to any Permitted Asset Securitization and such
breach shall continue beyond any grace period, if any, relating thereto
pursuant to the terms of such agreement, or if the Borrower or any
Subsidiary shall disaffirm or seek to disaffirm any such Swap Agreement
or any such operative agreement relating to any Permitted Asset
Securitization or any of its obligations thereunder; or
(l) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents; or
(m) if there shall occur or exist any Change of Control;
or
(n) if the Borrower or any of its Subsidiaries receives notice
of any violation, non-compliance, or liability or potential liability
under Environmental Laws, or the Borrower or any of its Subsidiaries is
in violation of or is not in compliance with or has incurred liability
or potential liability under Environmental Laws, which in either case
would reasonably be expected to result in a Material Adverse Effect and
which, with respect to any violation or non-compliance has not been
cured in all material respects during any applicable cure period,
PROVIDED that the Required Lenders have given the Borrower notice that
the same constitutes an Event of Default;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
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(A) either or both of the following actions may be
taken: (i) the Agent may, and at the direction of the Required
Lenders shall, declare any obligation of the Lenders and the
Issuing Bank to make further Revolving Loans and Swing Line
Loans or to issue additional Letters of Credit terminated,
whereupon the obligation of each Lender to make further
Revolving Loans, of Bank of America to make further Swing Line
Loans, and of the Issuing Bank to issue additional Letters of
Credit, hereunder shall terminate immediately, and (ii) the
Agent shall at the direction of the Required Lenders, at their
option, declare by notice to the Borrower any or all of the
Obligations to be immediately due and payable, and the same,
including all interest accrued thereon and all other
obligations of the Borrower to the Agent and the Lenders,
shall forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; PROVIDED,
however, that notwithstanding the above, if there shall occur
an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to make Revolving Loans, of Bank of
America to make Swing Line Loans, and of the Issuing Bank to
issue Letters of Credit hereunder shall automatically
terminate and any and all of the Obligations shall be
immediately due and payable without the necessity of any
action by the Agent or the Required Lenders or notice to the
Agent or the Lenders;
(B) The Borrower shall, upon demand of the Agent or
the Required Lenders, deposit cash with the Agent in an amount
equal to the amount of any Letter of Credit Outstandings, as
collateral security for the repayment of any future drawings
or payments under such Letters of Credit, and such amounts
shall be held by the Agent pursuant to the terms of the LC
Account Agreement; and
(C) the Agent and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents
or under any applicable law.
10.2. AGENT TO ACT. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
10.3. CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
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10.4. NO WAIVER. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
10.5. ALLOCATION OF PROCEEDS. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
ARTICLE X hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders and the Issuing Bank pursuant
to SECTIONS 4.6(a), 4.6(b), 4.6(c), AND 12.5;
(b) amounts due to the Agent pursuant to SECTION 4.6(d);
(c) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders(with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(d) payments of principal of Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders(with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(e) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to SECTION 10.1(B);
(f) amounts due to the Issuing Bank, the Agent and the Lenders
pursuant to SECTIONS 3.2(h), 8.14(c) and 12.9;
(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(h) amounts due to any of the Lenders or their affiliates in
respect of Obligations consisting of liabilities under any Swap
Agreement with any of the Lenders or their affiliates on a pro rata
basis according to the amounts owed; and
(i) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE XI
The Agent
---------
11.1. APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in SECTION 11.5 and
the first sentence of SECTION 11.6 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or
fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Credit Party or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
11.2. RELIANCE BY AGENT. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Credit Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof
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for all purposes hereof unless and until the Agent receives and accepts an
Assignment and Acceptance executed in accordance with SECTION 12.1 hereof. As to
any matters not expressly provided for by this Agreement, the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding on all of the Lenders; PROVIDED, HOWEVER, that the
Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to any Loan Document or applicable law or
unless it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking any such action.
11.3. DEFAULTS. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to SECTION 11.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, PROVIDED THAT, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
11.4. RIGHTS AS LENDER. With respect to its Revolving Credit Commitment
and the Loans made by it and Letters of Credit issued by it, Bank of America
(and any successor acting as Agent) in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity. Bank of America (and any successor acting as Agent) and
its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in, provide services to, and
generally engage in any kind of lending, trust, or other business with any
Credit Party or any of its Subsidiaries or affiliates as if it were not acting
as Agent, and Bank of America (and any successor acting as Agent) and its
affiliates may accept fees and other consideration from any Credit Party or any
of its Subsidiaries or affiliates for services in connection with this Agreement
or otherwise without having to account for the same to the Lenders.
11.5. INDEMNIFICATION. The Lenders agree to indemnify the Agent (to the
extent not reimbursed under SECTION 12.9 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or omitted
by the Agent under any Loan Document; PROVIDED that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
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willful misconduct of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any costs or expenses payable by the Borrower under SECTION
12.5, to the extent that the Agent is not promptly reimbursed for such costs and
expenses by the Borrower. The agreements contained in this SECTION 11.5 shall
survive payment in full of the Loans and all other amounts payable under this
Agreement.
11.6. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Credit Parties and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any
Credit Party or any of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
11.7. RESIGNATION OF AGENT. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this ARTICLE XI shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
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ARTICLE XII
Miscellaneous
-------------
12.1. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Loans, its
Revolving Note, and its Revolving Credit Commitment); PROVIDED,
HOWEVER, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, any such partial assignment
shall be in an amount at least equal to $5,000,000 or an
integral multiple of $5,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Agreement and its Revolving Note
(except that any assignment by Bank of America shall not
include its rights, benefits or duties as the Issuing Bank or
as the provider of Swing Line Loans); and
(iv) the parties to such assignment shall execute and
deliver to the Agent for its acceptance an Assignment and
Acceptance in the form of EXHIBIT B hereto, together with any
Revolving Note subject to such assignment and a processing fee
of $3,500.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits
of a Lender hereunder and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its
obligations under this Agreement. Upon the consummation of any
assignment pursuant to this Section, the assignor, the Agent and the
Borrower shall make appropriate arrangements so that, if required, new
Revolving Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrower and the
Agent certification as to exemption from deduction or withholding of
Taxes in accordance with SECTION 5.6.
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(b) The Agent shall maintain at its address referred to in
SECTION 12.2 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Revolving Credit Commitment of, and
principal amount of the Revolving Loans owing to, each Lender from time
to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially
the form of EXHIBIT B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and
obligations under this Agreement (including all or a portion of its
Revolving Credit Commitment or its Loans); PROVIDED, HOWEVER, that (i)
such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participant
shall be entitled to the benefit of the yield protection provisions
contained in ARTICLE V and the right of set-off contained in SECTION
12.3, and (iv) the Borrower shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole
right to enforce the obligations of the Borrower relating to its Loans
and its Note and to approve any amendment, modification, or waiver of
any provision of this Agreement (other than amendments, modifications,
or waivers decreasing the amount of principal of or the rate at which
interest is payable on such Loans or Note, extending any scheduled
principal payment date or date fixed for the payment of interest on
such Loans or Note, or extending its Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective
assignees and participants).
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(g) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors
and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are contained in the
Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Agent, the Lenders, or any of them. The
Borrower may not assign or otherwise transfer to any other Person any
right, power, benefit, or privilege (or any interest therein) conferred
hereunder or under any of the other Loan Documents, or delegate (by
assumption or otherwise) to any other Person any duty, obligation, or
liability arising hereunder or under any of the other Loan Documents,
and any such purported assignment, delegation or other transfer shall
be void.
(h) Neither the Agent nor any Lender shall deliver to any
Person who is a potential assignee or participant hereunder any
financial or other information with respect to the Borrower not
otherwise publicly available which was received by the Agent or such
Lender from the Borrower unless the Borrower has consented to such
Person being a potential assignee or participant (which consent shall
not be unreasonably withheld or delayed) and such Person has executed
and delivered to the Borrower an agreement to be bound by the terms of
SECTION 12.15 as if it were a Lender.
12.2. NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address or telefacsimile number, as appropriate, set forth below
or such other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower:
OMNOVA Solutions Inc.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Senior Vice President and
Chief Financial Officer
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
OMNOVA Solutions Inc.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Secretary
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Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(b) if to the Agent:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxx, Managing Director
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(d) if to any Guarantor, at the address set forth on the
signature page of the Facility Guaranty executed by
such Credit Party.
12.3. RIGHT OF SET-OFF; ADJUSTMENTS.
(a) Upon the occurrence and during the continuance of any
Event of Default, each Lender (and each of its affiliates) is hereby
authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its
affiliates) to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender,
irrespective of whether such Lender shall have made any demand under
this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; PROVIDED, HOWEVER,
that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this
SECTION 12.3 are in addition to other
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rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of the Loans owing to it, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans owing to it, or
interest thereon, such benefitted Lender shall purchase for cash from
the other Lenders a participating interest in such portion of each such
other Lender's Loans owing to it, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of
the Lenders; PROVIDED, HOWEVER, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefitted
Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that any Lender so purchasing a
participation from a Lender pursuant to this SECTION 12.3 may, to the
fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the
amount of such participation.
12.4. SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
Revolving Credit Commitment hereunder or the Borrower has continuing obligations
hereunder unless otherwise provided herein.
12.5. EXPENSES. The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the syndication, preparation,
execution, delivery, administration, modification, and amendment of this
Agreement, the other Loan Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and expenses of
counsel for the Agent (including the cost of internal counsel) with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable attorneys' fees and expenses and the cost of
internal counsel), in connection with the enforcement (whether through
negotiations, legal proceedings, or otherwise) of the Loan Documents and the
other documents to be delivered hereunder.
12.6. AMENDMENTS AND WAIVERS. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower or other applicable Credit
Party party to such Loan Document and either the Required Lenders or (as to Loan
Documents other than this Agreement) the Agent on
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behalf of the Required Lenders (and, if ARTICLE XI or the rights or duties of
the Agent are affected thereby, by the Agent); PROVIDED that no such amendment
or waiver shall, unless signed by all the Lenders, (i) increase the Revolving
Credit Commitments of the Lenders or the Total Revolving Credit Commitment, (ii)
reduce the principal of or rate of interest on any Revolving Loan or any fees or
other amounts payable hereunder, (iii) postpone any date fixed for the payment
of any scheduled installment of principal of or interest on any Loan or any fees
or other amounts payable hereunder or for termination of any Revolving Credit
Commitment, (iv) change the percentage of the Revolving Credit Commitment or of
the unpaid principal amount of the Notes, or the number of Lenders, which shall
be required for the Lenders or any of them to take any action under this SECTION
12.6 or any other provision of this Agreement or (v) release any Guarantor which
is a Material Subsidiary or in connection with transactions permitted pursuant
to SECTIONS 9.6, 9.8 OR 9.12; and PROVIDED, FURTHER, that no such amendment or
waiver that affects the rights, privileges or obligations of Bank of America as
provider of Swing Line Loans, shall be effective unless signed in writing by
Bank of America or that affects the rights, privileges or obligations of the
Issuing Bank as issuer of Letters of Credit, shall be effective unless signed in
writing by the Issuing Bank.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
12.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
12.8. TERMINATION. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agent or any obligation of the
Borrower, the Lenders or the Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Agent for the benefit of the
Lenders under the Loan Documents shall continue in full force and effect,
notwithstanding the termination of this Agreement, until all of the Obligations
have been paid in full after the termination hereof (other than Obligations in
the nature of continuing indemnities or expense reimbursement obligations not
yet due and payable, which shall continue) or the Borrower has furnished the
Lenders and the Agent with an indemnification satisfactory to the Agent and each
Lender with respect thereto. Notwithstanding the foregoing, if after receipt of
any payment of all or any part of the Obligations, any Lender is for any reason
compelled to surrender such payment to any Person because such payment is
determined to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason, this Agreement shall continue
in full force and the Borrower shall be liable to, and shall indemnify and hold
the Agent or such Lender harmless for, the amount of such payment surrendered
until
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the Agent or such Lender shall have been finally and irrevocably paid in full.
The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Agent or
the Lenders in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Agent or the Lenders' rights under this
Agreement and shall be deemed to have been conditioned upon such payment having
become final and irrevocable.
12.9. INDEMNIFICATION; LIMITATION OF LIABILITY. The Borrower agrees to
indemnify and hold harmless the Agent, BAS and each Lender and each of their
affiliates and their respective officers, directors, employees and counsel to
the Agent (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable fees and expenses of counsel and, without duplication,
the allocated cost of internal counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Spinoff, the Line of Business Transfer or the
Revolving Credit Facility, the Transaction Documents, any of the transactions
specified therein or herein or the actual or proposed use of the proceeds of the
Loans, except to the extent such claim, damage, loss, liability, cost, or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from (i) such Indemnified Party's gross negligence
or willful misconduct or (ii) legal proceedings commenced against such
Indemnified Party by any other Indemnified Party. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
SECTION 12.9 applies, such indemnity shall be effective whether or not the
transactions contemplated hereby are consummated. The Borrower agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to it, any of its Subsidiaries or any Guarantor,
arising out of, related to or in connection with the transactions contemplated
herein or in any of the Transaction Documents, except to the extent that such
liability is found in a final non-appealable judgment by a court of competent
jurisdiction to have directly resulted from such Indemnified Party's gross
negligence or willful misconduct. The Borrower agrees not to assert any claim
against the Agent, any Lender, any of their affiliates, or any of their
respective directors, officers, employees, attorneys, agents, and advisers, for
special, indirect, consequential, or punitive damages arising out of or
otherwise relating to the Transaction Documents, any of the transactions
contemplated therein or herein or the actual or proposed use of the proceeds of
the Loans, except for claims for such special, indirect, consequential, or
punitive damages directly arising out of such party's gross negligence or
willful misconduct. Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this SECTION 12.9 shall survive the payment in full of the Loans and all
other amounts payable under this Agreement.
12.10. SEVERABILITY. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
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12.11. ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto (except that those
provisions (if any) which by the express terms of the commitment letter dated as
of July 1, 1999, executed by Bank of America and BAS and accepted by the
Borrower, survive the closing of the Revolving Credit Facility and Letter of
Credit Facility, shall survive and continue in effect).
12.12. AGREEMENT CONTROLS. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
12.13. USURY SAVINGS CLAUSE. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Agent an amount equal to the difference between the
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
12.14. PAYMENTS. All principal, interest, and other amounts to be paid
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Agent at the Principal Office in Dollars and in immediately available
funds, without setoff, deduction or counterclaim. Subject to the definition of
"Interest Period" herein, whenever any payment under this Agreement or any other
Loan Document shall be stated to be due on a day that is not a Business Day,
such payment may be made on the next succeeding Business Day, and such extension
of time in such
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case shall be included in the computation of interest and fees, as applicable,
and as the case may be.
12.15. CONFIDENTIALITY. Each Lending Party agrees to keep confidential
any information furnished or made available to it by the Borrower pursuant to
this Agreement that is marked confidential; PROVIDED that nothing herein shall
prevent any Lending Party from disclosing such information (a) to any other
Lending Party or any affiliate of any Lending Party, or any officer, director,
employee, agent, or advisor of any Lending Party or affiliate of any Lending
Party, (b) to any other Person if reasonably incidental to the administration of
the credit facility provided herein, (c) as required by any law, rule, or
regulation, (d) upon the order of any court or administrative agency, (e) upon
the request or demand of any regulatory agency or authority, (f) that is or
becomes available to the public or that is or becomes available to any Lending
Party other than as a result of a disclosure by any Lending Party prohibited by
this Agreement, (g) in connection with any litigation to which such Lending
Party or any of its affiliates may be a party, (h) to the extent necessary in
connection with the exercise of any remedy under this Agreement or any other
Loan Document, and (i) subject to provisions substantially similar to those
contained in this Section, to any actual or proposed participant or assignee.
12.16. GOVERNING LAW; WAIVER OF JURY TRIAL.
(A) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.
(B) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE XXXXXX XX XXX
XXXX, XXXXX XX XXX XXXX, XXXXXX XXXXXX OF AMERICA AND, BY THE EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN,
OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
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COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE
ADDRESS OF THE BORROWER PROVIDED IN SECTION 12.2, OR BY ANY OTHER
METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN
THE STATE OF NEW YORK.
(D) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(F) THE BORROWER HEREBY EXPRESSLY WAIVES ANY
OBJECTION IT MAY HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS
SUBMITTED PURSUANT TO THE TERMS HEREOF IS AN INCONVENIENT FORUM.
12.17. SPECIAL FUNDING OPTION.
(a) Notwithstanding anything to the contrary contained herein,
any Lender (for the purposes of this SECTION 12.17, a "Granting
Lender") may grant to a special purpose funding vehicle (for the
purposes of this SECTION 12.17, an "SPC") the option to make, on behalf
of such Granting Lender, all or a portion of the Advances which such
Granting Lender is obligated to make (a "Funding Obligation") under the
Revolving Credit
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Facility, such option to be exercisable in the sole discretion of the
SPC, PROVIDED, HOWEVER, that
(i) such Granting Lender's obligations under this
Agreement and the Loan Documents shall remain unchanged,
including without limitation the indemnification obligations
of the Granting Lender pursuant to SECTION 11.5 hereof;
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(ii) such Granting Lender shall remain solely
responsible to the other parties hereto for the performance of
all Funding Obligations;
(iii) the Borrower and the Lenders shall continue to
deal solely and directly with such Granting Lender in
connection with such Granting Lender's rights and obligations
under this Agreement; the Agent shall continue to deal
directly with the Granting Lender as agent for the SPC with
respect to distribution of payment of principal, interest and
fees, notices of Conversion and Continuation and all other
matters;
(iv) such Granting Lender shall retain the sole right
to enforce the obligations of the Borrower relating to its
Loans and its Notes and its Participations and to approve any
amendment, modification, or waiver of any provisions of this
Agreement, each of which may, if so agreed in writing between
the Granting Lender and the SPC, require the prior consent of
any such SPC which has exercised the option to undertake the
Funding Obligation in connection with such Granting Lender's
Commitments and Participations and Obligations owing thereto
before the Granting Lender approves any such amendment,
modification or waiver;
(v) the granting of such option shall not constitute
an assignment to or participation of such SPC of or in the
Granting Lender's Commitments and Participations and
Obligations owing thereto;
(vi) such SPC shall not become a Lender hereunder as
a result of the granting of such option;
(vii) such SPC shall not become obligated or
committed to make Advances as a result of the granting of such
option;
(viii) if such SPC elects not to exercise such option
or otherwise fails to make all or any part of an Advance, the
Granting Lender shall retain its Funding Obligation and be
obligated to make the entire Advance or any portion of such
Advance not made by such SPC; and
(b) Advances made by an SPC hereunder shall be deemed to
satisfy the Funding Obligation and utilize the Revolving Credit
Commitment of the Granting Lender as if, and to the same extent, such
Advances were made by such Granting Lender.
(c) Each party hereto agrees that no SPC shall be liable for
any indemnity or payment under this Agreement for which a Granting
Lender would otherwise be liable so long as, and to the extent that,
the Granting Lender provides such indemnity or makes such payment.
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(d) Notwithstanding anything to the contrary contained in this
Agreement, an SPC may disclose on a confidential basis any nonpublic
information relating to Advances made by such SPC hereunder to any
rating agency, commercial paper dealer or provider of any surety or
guarantee to such SPC.
(e) This SECTION 12.17 may not be amended without the prior
written consent of the Granting Lender on behalf of which such SPC has
made all or any part of its Advances which remain outstanding at the
time of such amendment.
[Signatures on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
OMNOVA SOLUTIONS INC.
By: /S/
---------------------------
Name: M. E. XXXXX
-------------------------------------------
Title: SR. VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
-------------------------------------------------
BANK OF AMERICA, N.A.,
as Agent for the Lenders
By: /S/
---------------------------
Name: XXXXXXX X. XXXXX
--------------------------------------------------
Title: MANAGING DIRECTOR
-------------------------------------------------
SIGNATURE PAGE 1 OF 15
104
BANK OF AMERICA, N.A.
By: /S/
----------------------------------------------
Name: XXXXXXX X. XXXXX
---------------------------------------------
Title: MANAGING DIRECTOR
---------------------------------------------
Lending Office for Base Rate Loans:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Credit Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 000000000
Account No.: 13662122506
Reference: Omnova Solutions Inc.
Attention: Corporate Credit Services
Lending Office for Eurodollar Rate Loans:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Credit Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 000000000
Account No.: 13662122506
Reference: Omnova Solutions Inc.
Attention: Corporate Credit Services
SIGNATURE PAGE 2 OF 15
000
XXXX XXX, XXXXXXXX
By: /S/
---------------------------------------------
Name: XXXX X. XXXXXX
-------------------------------------------
Title: VICE PRESIDENT
---------------------------------------------
Lending Office for Base Rate Loans:
Bank One, Michigan
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Loan Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Bank One, Michigan
ABA# 000-000-000
Account No.: 2891000007
Reference: Omnova
Attention: Detroit LSA Group
Lending Office for Eurodollar Rate Loans:
Bank One, Michigan
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Loan Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Bank One, Michigan
ABA# 000-000-000
Account No.: 2891000007
Reference: Omnova
Attention: Detroit LSA Group
SIGNATURE PAGE 3 0F 15
106
DEUTSCHE BANK AG, New York or Cayman Islands
Branch
By: /S/
----------------------------------------------
Name: XXXX X. XXXXXXXXXX
----------------------------------------------
Title: MANAGING DIRECTOR
---------------------------------------------
By: /S/
----------------------------------------------
Name: XXXX XXXXXXX
--------------------------------------------
Title: ASSOCIATE
---------------------------------------------
Lending Office for Base Rate Loans:
Deutsche Bank AG, New York
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Deutsche Bank AG, New York
ABA# 026-00-3780
Account No.: N/A
Reference: Omnova Solutions
Attention: Xxxxx Xxxxxx
Lending Office for Eurodollar Rate Loans:
Deutsche Bank AG, C.I. Branch
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Deutsche Bank AG, C.I. Branch
ABA# 026-00-3780
Account No.: N/A
Reference: Omnova Solutions
Attention: Xxxxx Xxxxxx
SIGNATURE PAGE 4 OF 15
107
COMERICA BANK
By: /S/
----------------------------------------------
Name: XXXXXXX X. JUDGE
----------------------------------------------
Title: VICE PRESIDENT
---------------------------------------------
Lending Office for Base Rate Loans:
Comerica Bank
000 Xxxxxxxx Xxxxxx
9th Floor, MC 3268
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Comerica Bank
ABA# 000000000
Account No.: 00-00000-00000
Reference: Omnova Solutions Inc.
Attention: Commercial Loan Servicing
Lending Office for Eurodollar Rate Loans:
Comerica Bank
000 Xxxxxxxx Xxxxxx
9th Floor, MC 3268
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Comerica Bank
ABA# 000000000
Account No.: 00-00000-00000
Reference: Omnova Solutions Inc.
Attention: Commercial Loan Servicing
SIGNATURE PAGE 5 OF 15
000
XXXXX XXXXX XXXX, XXXXXXXXXXXX XXXX
By: /S/
----------------------------------------------
Name: XXXXX X. XXXXXX
---------------------------------------------
Title: VICE PRESIDENT
----------------------------------------------
Lending Office for Base Rate Loans:
Fifth Third Bank, Northeastern Ohio
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Fifth Third Bank, Northeastern Ohio
ABA# 000000000
Account No.: 00000000
Reference: Omnova Solutions, Inc.
Attention: Xxx Xxxxx
Lending Office for Eurodollar Rate Loans:
Fifth Third Bank, Northeastern Ohio
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Fifth Third Bank, Northeastern Ohio
ABA# 000000000
Account No.: 00000000
Reference: Omnova Solutions, Inc.
Attention: Xxx Xxxxx
SIGNATURE PAGE 6 OF 15
109
FIRST UNION NATIONAL BANK
By: /S/
----------------------------------------------
Name: XXXXX XXXX
--------------------------------------------
Title: SENIOR VICE PRESIDENT
-----------------------------------------------
Lending Office for Base Rate Loans:
First Union National Bank
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
First Union National Bank
ABA# 000000000
Account No.: 4659060001805
Reference: Omnova
Attention: Xxxx Xxxxxxx
Lending Office for Eurodollar Rate Loans:
First Union National Bank
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
First Union National Bank
ABA# 000000000
Account No.: 4659060001805
Reference: Omnova
Attention: Xxxx Xxxxxxx
SIGNATURE PAGE 7 OF 15
110
KEYBANK NATIONAL ASSOCIATION
By: /S/
----------------------------------------------
Name: XXXXXXXX X. XXXX
-------------------------------------------
Title: SENIOR VICE PRESIDENT
-----------------------------------------------
Lending Office for Base Rate Loans:
KeyBank National Association
000 Xxxxxx Xxxxxx
XX-00-00-00-00
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
KeyBank National Association
ABA# 000000000
Account No.: N/A
Reference: Omnova
Attention: Commercial Loans
Lending Office for Eurodollar Rate Loans:
KeyBank National Association
000 Xxxxxx Xxxxxx
XX-00-00-00-00
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
KeyBank National Association
ABA# 000000000
Account No.: N/A
Reference: Omnova
Attention: Commercial Loans
SIGNATURE PAGE 8 OF 15
111
NATIONAL CITY BANK
By: /S/
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President/ Senior Lending Officer
Lending Office for Base Rate Loans:
National City Bank
00000 Xxxx Xxxxx
Xxxxxxxx Xxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
National City Bank
ABA# 000000000
Account No.: 151804
Reference: Omnova Solutions Inc.
Attention: Commercial Loan Ops.
Lending Office for Eurodollar Rate Loans:
National City Bank
0000 Xxxx Xxxxx
Xxxxxxxx Xxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
National City Bank
ABA# 000000000
Account No.: 151804
Reference: Omnova Solutions Inc.
Attention: Commercial Loan Ops.
SIGNATURE PAGE 9 OF 15
112
PNC BANK, NATIONAL ASSOCIATION
By: /S/
----------------------------------------------
Name: XXXXXXXXX X. XXXXX
---------------------------------------------
Title: VICE PRESIDENT
----------------------------------------------
Lending Office for Base Rate Loans:
PNC Bank, National Association
000 Xxxxx Xxxxxx
X0-XXXX-00-0
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
PNC Bank, National Association
ABA# 0430-00096
Account No.: N/A
Reference: Omnova
Attention: Commercial Loans
Lending Office for Eurodollar Rate Loans:
PNC Bank, National Association
000 Xxxxx Xxxxxx
X0-XXXX-00-0
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
PNC Bank, National Association
ABA# 0430-00096
Account No.: N/A
Reference: Omnova
Attention: Commercial Loans
SIGNATURE PAGE 10 OF 15
000
XXX XXXX XX XXX XXXX
By: /S/
----------------------------------------------
Name: XXXXXX X. XXXXX
---------------------------------------------
Title: VICE PRESIDENT
----------------------------------------------
Lending Office for Base Rate and Eurodollar Loans:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions For Base Rate Loans:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
Commercial Loan Servicing Department
GLA# 111-556
Reference: Omnova Solutions
Specify Interest, Principal, Reserves and the
Period
Attention: Xxxxx Xxxxxxx
Wire Transfer Instructions for Eurodollar Rate Loans:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
Commercial Loan Servicing Department
GLA# 111-556
Reference: Omnova Solutions
Specify Interest, Principal, Fee and the
Period
Attention: Xxxxx Xxxxxxx
SIGNATURE PAGE 11 OF 15
114
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /S/
----------------------------------------------
Name: XXXXXX X. XXXXX
---------------------------------------------
Title: JOINT GENERAL MANAGER
----------------------------------------------
Lending Office for Base Rate Loans:
The Industrial Bank of Japan, Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited,
New York Branch
ABA# 000-000-000
Account No.: N/A
Reference: Omnova Solutions Inc.
Attention: Credit Administration Department
Lending Office for Eurodollar Rate Loans:
The Industrial Bank of Japan, Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited,
New York Branch
ABA# 000-000-000
Account No.: N/A
Reference: Omnova Solutions Inc.
Attention: Credit Administration Department
SIGNATURE PAGE 12 OF 15
115
MELLON BANK, N.A.
By: /S/
----------------------------------------------
Name: XXXX X. XXXXXXXX
--------------------------------------------
Title: VICE PRESIDENT
----------------------------------------------
Lending Office for Base Rate Loans:
Mellon Bank, N.A.
Three Mellon Bank Center
Pittsburgh, Pennsylvania
Attention: Xxxxx Xxxxxx, Loan Administrator
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Mellon Bank, N.A.
ABA# 000000000
Account No.: 990873800
Reference: Omnova Solutions
Attention:Loan Administration
Lending Office for Eurodollar Rate Loans:
Mellon Bank, N.A.
Three Mellon Bank Center
Pittsburgh, Pennsylvania
Attention: Xxxxx Xxxxxx, Loan Administrator
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Mellon Bank, N.A.
ABA# 000000000
Account No.: 990873800
Reference: Omnova Solutions
Attention:Loan Administration
SIGNATURE PAGE 13 OF 15
116
THE NORTHERN TRUST COMPANY
By: /S/
----------------------------------------------
Name: XXXX X. XXXXXX
--------------------------------------------
Title: SECOND VICE PRESIDENT
-------------------------------------------
Lending Office for Base Rate Loans:
The Northern Trust Company
00 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Honda
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
The Northern Trust Company
ABA# 000000000
Account No.: 518640000
Reference: Omnova Solutions Inc.
Attention: Commerical Loan Department
Lending Office for Eurodollar Rate Loans:
The Northern Trust Company
00 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Honda
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
The Northern Trust Company
ABA# 000000000
Account No.: 518640000
Reference: Omnova Solutions Inc.
Attention: Commerical Loan Department
SIGNATURE PAGE 14 OF 15
117
THE SUMITOMO BANK, LIMITED
By: /S/
----------------------------------------------
Name: XXXX X. XXXXXX
--------------------------------------------
Title: SENIOR VICE PRESIDENT
-------------------------------------------
Lending Office for Base Rate Loans:
The Sumitomo Bank Limited
000 Xxxx Xxxxxx
Xx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx-Xxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Citibank, N.A. New York
ABA# 000000000
Account No.: 00000000
Reference:The Sumitomo Bank, Limited, New York
Attention: Loan Operations
Lending Office for Eurodollar Rate Loans:
The Sumitomo Bank Limited
000 Xxxx Xxxxxx
Xx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx-Xxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Citibank, N.A. New York
ABA# 000000000
Account No.: 00000000
Reference:The Sumitomo Bank, Limited, New York
Attention: Loan Operations
SIGNATURE PAGE 15 OF 15
